THE  PARTY  OF 
THE  THIRD  PART 


HENKSf J.  ALLEN 


SCHOOL  OF  LAW 
LIBRARY 


THE   PARTY  OF  THE  THIRD   PART 


THE  PARTY  OF 
THE  THIRD  PART 

The  Story  of  the  Kansas 
Industrial  Relations  Court 


BY 


HENRY  J.   ALLEN 

Governor  of  the  State  of  Kansas 


T 


THE  PARTY  OF  THE  THIRD  PART 


Copyright,  1921,  by  Harper  &  Brothers 

Printed  in  the  United  States  of  America 

c-v 


ACKNOWLEDGMENT 

It  is  a  pleasure  to  express  my  appreciation  for  the  assistance 
I  have  had  in  the  preparation  of  this  manuscript  from  Mr, 
Elmer  T.  Peterson,  the  associate  editor  of  my  newspaper,  the 
Wichita  Beacon.  His  careful  suggestions,  his  assistance  in  col- 
lecting the  material,  and  his  able  attention  to  the  details  of 
preparation  have  made  possible  the  production  of  the  book 
during  an  exceptionally  busy  period. 


•6 
~3 


CONTENTS 

CHAP.  PACK 

ACKNOWLEDGMENT       v 

INTRODUCTORY xi 

I.  THE  RESULT  OF  THE  FIRST  PUBLIC  TEST i 

Narrative  of  the  "Referendum,"  or  popular  verdict  on 
the  Industrial  Court — Incidents  of  the  1920  campaign. 

II.  A  COURT  WITH  A  HEART 16 

Stories  showing  how  the  new  law  affected  laboring  men 
— The  decisions  and  their  effect — Incidents  in  court. 

III.  THE  PERIOD  OF  UNREST 39 

Importance  of  the  industrial  problem  and  the  effect  of 
strikes — Background  for  the  new  law. 

IV.  THE  KANSAS  COAL  STRIKE 48 

Story  of  the  strike,  the  receivership,  volunteer  mining — 
Reaction  of  public  sentiment. 

V.  THE  MAKING  OF  THE  COURT 62 

Kansas  situation  typical,  not  exceptional — How  the  strike 
led  up  to  the  legislative  session — Narrative  of  the  session — 
Extracts  of  addresses  and  picture  of  the  legislature. 

VI.  THE  CARNEGIE  HALL  DEBATE 92 

Next  important  event  in  the  history  of  the  Industrial 
Court — Narrative  of  the  event. 

VII.  MR.  GOMPERS'S  SUPPLEMENTARY  STATEMENT    .     .     .     .114 

Comment  upon  his  article. 

VIII.  LABOR  LEADERS  AND  THE  WAR 121 

Enlarging  upon  one  of  the  themes  of  the  debate. 


CONTENTS 

CHAP.  PAGE 

IX.  WHY  THE  INDUSTRIAL  COURT? 131 

First  of  three  chapters  that  deal  with  philosophy  of  the 
court — Beginning  of  analytical  study. 

X.  GOVERNMENT  AND  ITS  POLICE  POWERS 144 

Continuation  of  analytical  study  showing  that  govern- 
ment itself  is  involved,  and  that  the  police  power  is  one  of 
the  most  important  of  governmental  functions. 

XI.  INVISIBLE  GOVERNMENTS 168 

Third  of  analytical  chapters,  dealing  with  the  growing 
dominance  of  economic  factors  or  the  invisible  empire,  and 
showing  how  a  political  democracy  must  retrieve  its  power 
by  means  of  industrial  courts. 

XII.  WHY  RADICALS  OPPOSE 185 

Discussion  of  radical  opposition  to  the  court — Danger  of 
too  much  reaction. 

XIII.  STRIKES  AND  LOCKOUTS 194 

Analysis  of  the  fundamentals  of  the  strike. 

XIV.  THE  FRUIT  OF  THE  KANSAS  COAL  STRIKE 208 

Description  of  some  of  the  features  of  the  Industrial  Court 
law. 

XV.  THE  WEAKNESSES  OF  ARBITRATION 221 

Early  history  of  arbitration — French  Conseils  des  Pru- 
d'hommes — Australian,  New  Zealand,  and  Canadian  laws — 
Why  arbitration  as  a  principle  is  faulty — President's  Indus- 
trial Conference  report  and  its  recommendations. 

2LVI.     SPECIALIZATION  IN  INDUSTRY 241 

One  of  the  most  prolific  sources  of  industrial  trouble — 
The  lack  of  the  human  touch — How  the  Industrial  Court 
or  code  may  alleviate  this. 

XVII.    COLLECTIVE  BARGAINING 247 

Attitude  of  the  Kansas  court  on  this  question — A  brief 
discussion  of  the  purposes  of  collective  bargaining. 


CONTENTS 

CHAP.  PACK 

XVIII.  SOME  LEGAL  PHASES  OF  THE  INDUSTRIAL  COURT  .     .     .  253 

Earliest  English  laws  on  industrial  relations;  their  crudity 
— Development  of  modern  legal  conceptions  as  to  the  strike 
and  industrial  combinations. 

XIX.  THE  PUBLIC— WHAT  Is  IT? 262 

The  party  of  the  third  part — Its  relation  to  the  forces  of 
labor  and  capital. 

XX.  SLOWING  DOWN  PRODUCTION 265 

Nonproduction  the  great  cause  of  poverty — Fallacy  of 
reducing  per  capita  production  for  the  sake  of  making  more 
jobs — Laws  of  diminishing  returns. 

XXI.  CONCLUSION 275 

Government  must  take  a  more  active  hand  in  industry, 
that  is  inevitable;  if  not  by  adjudication,  then  by  ownership 
of  great  industries — Adjudication  the  way  of  a  republic — 
Summary  of  the  issues  of  the  Industrial  Court  discussion. 


INTRODUCTORY 

ARE  industrial  relations  a  matter  of  private 
contract? 

Is  the  industrial  problem  confined  within  the  four 
corners  of  a  collective  bargain? 

A  contract  is  between  the  party  of  the  first  part 
and  the  party  of  the  second  part. 

In  the  evolution  of  civilization  and  its  industrial 
implements  a  third  party  has  come  to  the  front, 
and  the  party  of  the  third  part  is  greater  than  the 
parties  of  the  first  and  second  parts.  That  third 
party  is  the  public,  and  that  means  all  of  us. 

Industrial  relations  have  taken  on  a  new  meaning 
in  society.  In  fact,  the  public  is  becoming  enmeshed 
in  them  to  such  an  extent  that  the  relations  con- 
stitute a  great  public  problem. 

This  book  is  written  in  the  hope  that  it  may 
throw  some  light  on  the  fundamentals  of  this  prob- 
lem. The  reasons  for  the  Kansas  Court  of  In- 
dustrial Relations  go  deep  into  the  sources  of 
government  itself,  and  it  has  been  thought  ad- 
visable, along  with  the  story  of  the  court,  to  set 
forth  some  of  the  basic  principles  of  government  as 
they  affect  industrial  legislation. 

The   history   of  human    advancement   has   been 


INTRODUCTORY 

largely  the  history  of  bettering  the  conditions  of  the 
laboring  man,  and  nothing  should  be  done  by  the 
state  to  prevent  the  continuation  of  that  steady 
progress.  The  laboring  man  must  be  given  prompt 
and  complete  justice.  He  must  be  given  the  gov- 
ernment's guaranty  of  absolute  protection  in  order 
that  his  progress  may  be  sane  and  constructive. 

But  the  same  principles  of  justice  which  are  ex- 
tended to  his  side  of  the  quarrel  must  be  extended 
also  to  the  side  of  the  employers.  It  is  the  duty  of 
the  government  to  see  to  it  that  the  strife  which  has 
grown  between  them  shall  no  longer  express  itself 
in  a  form  of  warfare  upon  an  innocent  and  helpless 
public. 

"Salus  populi  suprema  lex  esto!" 


THE   PARTY  OF  THE  THIRD   PART 


THE    PARTY    OF 
THE    THIRD    PART 


THE   RESULT  OF  THE   FIRST   PUBLIC  TEST 

THE  Court  of  Industrial  Relations  in  Kansas 
has  already  earned  its  right  to  be  regarded 
as  a  permanent  institution.  It  has  just 
completed  the  first  year  of  its  life  and  has  more  than 
justified  the  claims  which  its  founders  made  for  it. 
^.fter  the  severest  of  tests  the  court  has  not  only 
proved  its  great  value  in  settling  labor  disputes  in 
the  state  of  Kansas,  but  is  now  ready  to  submit  the 
result  of  its  work  to  the  other  states  in  the  Union. 
In  its  brief  life  thus  far  the  court  has  been  pro- 
nounced upon  by  many  different  classes  of  people, 
and  in  almost  every  case  the  pronouncements  have 
been  highly  favorable  and  even  enthusiastic.  In 
the  recent  general  election  more  than  a  half  million 
voters  expressed  themselves  with  reference  to  the 
court  and  the  astonishing  result  of  the  referendum 


2      THE  PARTY  OF  THE  THIRD  PART 

showed  that  the  court  received  the  approval  of 
every  county  in  the  state,  including  the  industrial 
communities. 

In  Crawford  County,  the  center  of  the  mining 
district  and  the  home  of  Alexander  Howat,  district 
president  of  the  International  Mine  Workers'  Union, 
the  most  notable  enemy  of  the  law,  the  entire  legis- 
lative ticket  which  was  presented  to  the  public  for 
indorsement  of  the  court  was  elected,  while  Howat's 
ticket,  consisting  of  a  combination  of  Socialists, 
labor  radicals,  Non-Partisan  League  members,  and 
Democrats,  united  on  a  platform  of  opposition  to  the 
court,  was  decisively  defeated. 

From  the  moment  the  court  was  established  the 
radical  union-labor  elements  began  to  organize  for 
the  campaign  to  defeat  the  Industrial  Court.  Their 
first  wish  was  to  repeal  the  law  and,  failing  in  this,  to 
secure  the  election  of  a  legislature  that  would  so  alter 
it  or  load  it  down  that  it  would  become  ineffective. 

To  this  end  an  ambitious  combination  was  effected 
— a  coalition  of  radicals,  Non-Partisan  League  farm- 
ers, and  Democrats.  The  campaign  was  directed 
against  the  head  of  the  state  ticket  and  the  legisla- 
tive candidates,  and  the  workers  set  out  upon  a 
systematic  effort  to  misrepresent  and  discredit  the 
law. 

Under  direction  of  Alexander  Howat  a  force  of 
speakers  were  brought  into  the  state  and  many  of 
them  were  trained  for  the  task  at  the  headquarters 
of  the  Kansas  Federation  of  Miners,  near  the  coal 


THE  FIRST  PUBLIC  TEST  3 

mines  at  Pittsburg,  Kansas.  They  were  sent  out  all 
over  the  state.  The  leaders  went  even  so  far  as  to 
get  colored  speakers  for  districts  where  negro 
laborers  predominated. 

One  of  the  expedients  they  used  was  the  un- 
fortunate fact  that  the  Industrial  Court,  as  now 
constituted,  administers,  in  addition  to  industrial 
law,  the  duties  of  the  old  Kansas  Public  Utilities 
Commission,  and  since  the  court  had  allowed  in- 
creased rates  to  various  public  utilities  it  was  ac- 
cused of  being  friendly  to  the  corporations. 

Another  cunning,  though  baseless,  accusation  was 
that  the  court  would  regulate  the  growing  and 
marketing  of  wheat.  Farmers  were  told  that  the 
court  would  prevent  them  from  forming  wheat 
pools  or  holding  their  wheat  for  a  better  price,  and 
that  it  would  compel  them  to  market  their  grain 
at  the  court's  pleasure. 

These  charges  created  an  opposition  which,  for  a 
time,  threatened  the  success  of  the  court  ticket.  In 
fact,  the  strength  of  the  opposition  so  impressed 
other  candidates  on  the  Republican  ticket  that  a 
great  many  of  them  conspicuously  avoided  any 
discussion  of  the  Industrial  Court  which  was  bearing 
the  brunt  of  the  state  campaign,  yet  at  the  end  of 
the  campaign  the  Governor  had  been  elected  by  a 
majority  of  more  than  100,000  votes,  losing  only 
3  of  the  105  counties. 

Every  legislative  candidate  who  opposed  the 
court  was  defeated.  Every  man  who  voted  against 


4      THE  PARTY  OF  THE  THIRD  PART 

the  bill  in  the  special  legislative  session  that  enacted 
the  law  was  left  at  home.  Senator  Montee,  repre- 
senting Crawford  County,  the  center  of  the  coal- 
mining industry,  voted  against  the  bill  and  was 
defeated  by  a  man  supporting  the  law.  Representa- 
tive Shideler  of  the  same  county,  who  supported  the 
law,  was  renominated  and  re-elected,  and  the  other 
member  of  the  legislature  from  that  county  is 
favorable  to  the  law. 

By  order  of  state  union  leaders  a  special  levy  of 
seventy  cents  a  month  per  member  was  made 
against  the  principal  unions  of  the  state  for  the 
raising  of  a  fund  to  defeat  the  law.  Mr.  Howat 
stated  publicly  that  Farrington,  leader  of  the 
Illinois  miners'  unions,  would  send  $100,000  into 
Kansas  to  defeat  the  law. 

The  state  Democratic  organization  worked  openly 
and  conspicuously  with  the  radicals,  and  the  Demo- 
cratic national  committeeman  from  Kansas  spent 
weeks  stumping  the  state,  defending  the  activities  of 
Mr.  Howat  and  his  workers.  One  of  the  Democratic 
candidates  for  Governor,  in  his  pre-primary  cam- 
paign, made  an  open  bid  for  the  radical  vote  by 
upholding  the  strike.  The  Howat  element  fought 
the  state  administration  because  of  the  Industrial 
Court,  and  the  Democratic  leadership  fought  the 
state  administration  to  gain  political  ends;  but  the 
arguments  were  used  interchangeably  by  the  two 
elements. 

It  is  a  remarkable  fact  that  the  only  Republican 


THE  FIRST   PUBLIC  TEST  5 

legislator  who  voted  against  the  Industrial  Court 
bill  was  defeated  by  a  pro-court  Democrat  in  a 
Republican  district  in  the  face  of  a  Republican 
landslide. 

One  of  the  peculiarities  of  the  campaign  in  the 
labor  districts  was  the  interest  of  the  women. 
Students  of  the  suffrage  problem,  who  have  been 
investigating  the  1920  election  results  for  lessons 
on  the  woman  vote,  may  gain  something  of  value  by 
analyzing  the  independent  voting  of  laborers'  wives 
in  Kansas.  The  striker's  wife,  like  that  of  the 
soldier,  bears  the  brunt  of  grief  and  want,  and  it  was 
discovered,  particularly  in  railroad  districts,  that 
the  wives  of  workingmen  were  taking  a  keener 
interest  in  the  law  than  the  men  themselves. 

At  Herington,  the  seat  of  great  Rock  Island  Rail- 
road shops,  I  spoke  to  an  audience  composed  of 
railroad  men  and  their  wives.  I  held  before  them, 
as  justification  for  the  law,  the  fact  that  their  present 
leadership  was  costing  them  more  than  it  was 
worth — that  labor  leaders  who  called  strikes  never 
shared  in  the  suffering  they  entailed,  for  their  pay 
went  on  just  the  same.  I  preached  the  doctrine 
that  if  the  government  could  find  justice  for  the 
laboring  man  in  his  quarrels,  there  was  no  reason 
why  a  laboring  man  should  pay  a  percentage  of  his 
wages  to  keep  a  lot  of  professional  leaders  in  easy 
circumstances. 

After  the  meeting  was  over  and  the  crowd  had 
dispersed  a  switchman's  wife  made  an  extemporane- 


6   THE  PARTY  OF  THE  THIRD  PART 

ous  speech  to  a  group  of  railroad  employees  who  had 
gathered  in  a  small  group.  Among  other  things, 
she  said: 

"You  know  he  told  you  the  truth,  and  he  is  the 
only  man  who  has  ever  tried  to  do  anything  for  us 
without  charging  us  for  it.  You  know  that  what  he 
said  about  the  leaders  is  a  fact."  She  then  turned 
to  her  husband  and  said,  "Bill,  if  you  had  all  the 
money  that  you  have  paid  these  leaders  I  could  have 
had  a  vacation  this  summer." 

In  practically  every  labor  center  where  I  went  to 
speak  in  the  campaign  the  members  of  our  com- 
mittees prophesied  that  there  would  be  interrup- 
tions and  disorder — that  the  radicals  had  arranged  a 
program  of  heckling  and  various  forms  of  dis- 
turbance. In  some  cases  walkouts  had  been 
planned.  Yet  I  received  in  every  place  the  most 
courteous  attention  and  sympathetic  hearing. 

Noisy  threats  of  radicals  did  not  materialize, 
because  the  conservatives  in  the  labor  group — for 
the  most  part  native  Americans — insisted  that  the 
discussion  should  be  greeted  with  a  respectful 
hearing. 

You  can  generally  depend  upon  the  radical  in  a 
case  of  this  kind  to  make  blunders.  At  Parsons,  the 
home  of  the  great  M.,  K.  &  T.  shops,  the  labor 
organizations  were  in  the  hands  of  the  radicals. 
The  day  before  I  was  to  speak  there  the  office  of  the 
central  union-labor  bodies  issued  a  call  which  was 
published  in  the  local  papers.  This  call  demanded 


THE  FIRST  PUBLIC  TEST  7 

of  the  Republican  central  committee  that  my  meet- 
ing be  annulled  and  that  I  be  not  permitted  to  hold 
any  meeting  in  Parsons.  This  effort  on  the  part  of 
a  group  which  is  always  proclaiming  the  right  of 
free  speech  disgusted  the  conservatives.  In  spite 
of  the  forewarnings,  my  meeting  in  Parsons  was  a 
distinct  success,  particularly  so  far  as  attendance 
and  attention  were  concerned,  and,  although  the 
community  cast  a  heavy  labor  vote,  I  carried  it  by 
a  good  majority. 

At  Newton,  the  home  of  a  great  system  of  Santa 
Fe  Railroad  shops,  I  had  been  advised  not  to  attempt 
a  meeting.  Gloomy  forebodings  were  expressed  by 
my  own  friends  as  to  the  effect  of  trying  to  hold  a 
meeting  there,  and  on  the  night  I  appeared  most  of 
the  local  candidates  found  it  convenient  to  be  in 
another  place  in  the  county. 

Newton  has  a  great  convention  hall,  which  is 
rarely  filled.  It  was  packed  on  the  night  of  the 
meeting,  the  attendance  being  even  larger  than  that 
which  greeted  the  Democratic  candidate  for  Presi- 
dent two  days  before.  Everybody  was  nervous 
about  the  outcome,  including  myself.  I  realized 
that  a  majority  of  the  voters  were  supposed  to  be 
against  the  court.  They  gave  me  the  most  re- 
spectful attention  and,  though  I  invited  questions, 
not  an  interruption  occurred.  But  the  meeting 
was  somewhat  sensational  as  to  its  aftermath. 

Next  day  it  developed  that  there  was  a  large 
representation  of  shopmen  in  all  crafts  who  were  in 


8      THE  PARTY  OF  THE  THIRD  PART 

favor  of  giving  the  Industrial  Court  a  chance. 
Presuming  themselves  to  be  in  the  minority,  they 
had  kept  silent.  The  day  after  the  meeting  their 
tongues  were  loosed  and  it  developed  that  the 
Industrial  Court  had  an  astonishing  following.  Its 
friends  began  to  fight  for  it,  and  in  one  in- 
stance the  fight  became  an  actual  physical  combat 
between  a  friend  of  the  court  and  a  radical — an 
unfortunate  instance  in  which  the  radical  emerged 
with  a  broken  arm.  I  carried  the  county  on 
election  day. 

At  Ellis,  a  railroad  center  on  the  Union  Pacific, 
the  radicals  had  created  so  much  disturbance  that 
the  Republican  leaders  had  passed  judgment  against 
the  policy  of  holding  a  meeting  there.  One  of  the 
leading  radicals  had  stated  openly  and  persistently 
that  it  would  not  do  for  us  to  attempt  to  hold  a 
meeting.  As  usual,  he  did  all  the  talking,  and  it 
sounded  as  though  he  represented  the  community. 

When  I  arrived  I  was  met  by  the  members  of  the 
local  central  committee,  who  repeated  some  of  the 
fearsome  warnings  of  radical  outbursts,  saying  that 
they  did  not  believe  I  would  be  allowed  to  get  through 
with  the  meeting.  I  opened  the  meeting  by  telling 
the  audience  of  these  warnings  and  by  inviting  any 
man  in  the  audience  to  interrupt  me  at  any  time 
with  any  fair  question  that  occurred  to  him.  I  urged 
all  to  listen  to  my  explanation  of  the  court  and 
challenged  the  radicals  by  the  flat  statement  that 
they  were  either  ignorant  of  the  law  and  its  pro- 


THE  FIRST  PUBLIC  TEST  9 

visions  or  maliciously  misrepresented  it.  And  I 
said  I  would  prove  this  somewhat  general  charge. 
Not  a  single  interruption  occurred  and  there  were  no 
questions.  At  the  conclusion  of  the  meeting  a  young 
American-born  engineer  voluntarily  arose  and  pub- 
licly said  I  had  proven  the  charge — that  he  himself 
had  been  misled  and  intended  to  vote  for  me.  He 
also  said  he  would  devote  much  of  his  time  until 
election  to  make  the  principles  of  the  law  clear  to 
his  fellow  workers. 

In  the  election  Ellis  County,  which  was  previ- 
ously Democratic,  went  Republican  for  the  state 
and  national  tickets,  and  for  the  first  time  in  years 
elected  a  Republican  legislator. 

In  Kansas  City,  Kansas,  which  probably  has  the 
largest  distinctively  labor  population  of  any  section 
of  the  state,  there  were  warnings  similar  to  those  in 
Ellis.  The  police  had  been  told  that  men  were  going 
to  the  meeting  with  eggs  concealed  about  their 
persons  and  that  I  was  to  be  served  up  as  a  sort  of 
an  omelet. 

Kansas  City  in  Kansas  embraces  Armourdale,  the 
home  of  several  thousand  packing-house  employees, 
and  Rosed  ale,  Argentine,  and  Armstrong,  which  are 
strong  railroad  centers. 

On  Labor  Day  the  radicals  in  a  parade  carried  the 
American  banner  upside  down  and  bore  various 
hostile  inscriptions,  one  of  which  read,  "To  hell  with 
the  Industrial  Court." 

When  it  was  decided  to  hold  a  meeting  at  Armour- 


io    THE  PARTY  OF  THE  THIRD  PART 

dale  the  city  administration  was  worried  and  desired 
to  extend  special  police  protection.  The  meeting 
was  a  very  large  one  and  packed  the  hall  to  suf- 
focation. Fully  half  the  audience  were  women. 
The  distinctive  characteristic  was  intense  quietness. 
The  meeting  was  half  over  before  there  was  a  ripple 
of  any  sort  of  response. 

Laboring  men  and  their  families,  who  had  listened 
to  radical  leaders  abuse  the  court  in  most  savage 
fashion  for  several  months,  sat  with  most  intense 
earnestness  that  was  in  the  deepest  sense  inspiring. 
The  radical  leader  of  the  community  was  there, 
occupying  a  prominent  point  of  vantage.  I  could 
see  members  of  the  audience  glance  at  him  occa- 
sionally, and  particularly  when  I  cleared  up  some 
point  which  he  had  misrepresented  to  them.  Yet 
not  a  note  of  partisanship  was  expressed  by  the 
great  audience.  It  had  decided  to  listen  and  learn 
the  facts.  No  attempt  was  made  to  challenge  any 
statement.  There  was  no  particular  note  of  cor- 
diality to  me  as  I  left,  but  certainly  no  indication  of 
hostility.  In  my  many  years  of  experience  I  have 
never  felt  more  vividly  the  presence  of  intelligent 
judgment. 

However,  the  candidate  for  state  Senator  in  that 
district,  who,  while  a  member  of  the  Lower  House, 
voted  for  the  Industrial  Court  bill,  was  elected  to 
the  Senate  and  the  results  showed  that  I  secured 
hundreds  of  labor  votes. 

One  of  my  purposes  in  relating  the  foregoing  in- 


THE  FIRST  PUBLIC  TEST  11 

cidents  is  to  show  that  in  all  these  audiences  there 
was  present  the  quiet  strength  of  the  labor  con- 
servative with  his  American  spirit  of  fair  play.  He 
may  not  be  the  major  influence  of  to-day,  but  he  is 
sure  to  be  the  influence  that  will  ultimately  save  his 
organization  from  the  destructive  tendencies  of  the 
radical  forces  which  seem  to  have  captured  it,  but 
not  yet  captured  him  personally. 

The  attempt,  by  radical  leaders,  to  dominate  the 
1920  campaign  first  became  conspicuous  in  the 
spring.  Early  in  June  President  Gompers  issued  a 
statement  calling  upon  all  union-labor  men  to  vote 
for  no  one  upon  a  congressional  or  state  legislative 
ticket  unless  it  was  known  that  the  candidate  was 
friendly  to  organized  labor.  Being  "friendly  to  or- 
ganized labor"  meant  being  willing  to  vote  for  organ- 
ized labor's  demands.  Mr.  Gompers,  in  his  pro- 
nunciamento,  especially  warned  against  the  selection 
of  men  who  were  "indifferent"  to  labor  and  then 
added  that  they  wanted  in  Congress  men  who  held 
"honest  union  cards."  In  other  words,  Mr.  Gom- 
pers's  effort  was  to  secure  a  unionized  Congress. 

This  idea  of  a  bridled  and  shackled  Congress  is  not 
only  un-American,  but  it  violates  the  very  principle 
of  representative  government  in  legislative  action  as 
recognized  by  all  democracies.  Edmund  Burke 
pointed  out  in  his  day  the  fundamental  objection  to 
a  Congress  made  up  of  men  who  represent,  not  the 
interests  of  the  people,  but  the  special  interests  of 
classes.  His  declaration  so  clearly  states  the  prin- 


12    THE  PARTY  OF  THE  THIRD  PART 

ciple  that  I  have  thought  it  valuable  to  use  in  this 
connection : 

The  opinion  of  a  constituency  is  a  weighty  and  respectable 
opinion,  which  a  representative  ought  always  to  rejoice  to  hear, 
and  which  he  ought  always  most  seriously  to  consider.  But 
authoritative  instructions,  mandates  issued,  which  the  repre- 
sentative is  bound  blindly  and  implicitly  to  obey,  to  vote,  and 
to  argue  for,  though  contrary  to  the  clearest  conviction  of  his 
judgment  and  conscience,  are  things  utterly  unknown  to  the 
laws  of  this  land,  and  arise  from  a  fundamental  mistake  of  the 
whole  law  and  tenor  of  our  constitution.  Parliament  is  not  a 
congress  of  ambassadors  from  different  and  hostile  interests, 
which  interests  each  must  maintain  as  an  agent  and  advocate 
against  other  agents  and  advocates;  but  Parliament  is  a  de- 
liberative assembly  of  one  nation,  with  one  interest — that  of  the 
whole — where  any  local  purposes,  any  local  prejudice,  ought  not 
to  guide.  You  choose  a  member,  indeed,  but  when  you  have 
chosen  him  he  is  not  a  member  of  Bristol,  but  he  is  a  member 
of  Parliament.  If  the  local  constituency  should  have  an  interest, 
or  should  form  a  hasty  opinion  evidently  opposite  to  the  real 
good  of  the  rest  of  the  community,  a  member  for  that  place 
ought  to  be  as  far  as  any  other  from  any  endeavor  to  give  it 
effect. 

It  has  been  interesting  to  observe,  in  various 
elections  in  which  both  congressional  and  legislative 
nominees  have  been  chosen,  the  effect  of  Mr.  Gom- 
pers's  prescriptive  program.  With  the  exception  of 
the  success  it  has  attained  in  a  few  of  the  more  con- 
gested labor  districts  of  the  country,  this  un- 
American  effort  seems  to  have  reacted  upon  itself 
and  the  result  will  probably  be  that  future  Congresses 
of  the  United  States  will  be  less  responsive  to  the 
threat  of  union  labor's  retaliation  than  those  of  the 
past. 


THE  FIRST  PUBLIC  TEST  13 

The  manner  in  which  the  effort  was  carried  on  in 
Kansas  prior  to  the  1920  primaries  is  doubtless 
typical  of  the  working  of  the  program  elsewhere. 
Here,  in  the  August  primaries  of  1920,  for  the  first 
time  in  the  history  of  the  state,  the  radicals  made 
an  all-embracing  program,  the  effect  of  which,  if 
successful,  would  be  to  nominate  radicals  for  every 
legislative  office  in  both  potential  parties.  The 
radical  labor  leaders  and  labor  journals  united  with 
the  Non-Partisan  League  in  an  effort  to  weld  to- 
gether union  labor  and  farmers.  The  Non-Partisan 
League  is  the  agricultural  branch  of  the  radicals  and 
has  a  following  in  some  of  the  communities  where 
foreign-born  populations  have  colonized. 

In  districts  that  were  hopelessly  Republican  the 
radicals  were  instructed  to  ask  for  Republican  bal- 
lots in  the  primaries  that  they  might,  by  their 
solidarity,  swing  the  party  nomination  to  a  radical 
sympathizer.  There  were  four  congressional  dis- 
tricts in  which  this  was  done  in  Kansas  and  these 
happened  to  be  districts  in  which  the  labor  elements 
were  especially  strong. 

In  the  Third  District  it  was  pointed  out  that  the 
present  incumbent  had  voted  for  the  anti-strike 
provisions  of  the  Esch-Cummins  law  and  was 
therefore  an  enemy  of  labor.  This  is  the  district  in 
which  the  mining  counties  are  located  and  much 
was  made  of  the  fact  that  the  present  incumbent  had 
been  blacklisted  by  labor.  Notwithstanding  that, 
he  carried  every  county  in  the  district. 


i4    THE  PARTY  OF  THE  THIRD  PART 

In  the  Second,  Fifth,  and  Eighth  districts  similar 
fights  were  made  and  in  each  of  these  districts  the 
candidates  who  bore  the  indorsement  of  the  so- 
called  farmer-labor  organization  were  defeated  over- 
whelmingly. The  United  States  Senator  who  had 
voted  for  the  anti-strike  provision  of  the  Cummins 
law  carried  all  but  a  few  counties  in  the  state, 
while  the  fight  which  was  centered  upon  the  Gover- 
norship in  a  combined  opposition  to  the  Industrial 
Court,  including  Democrats,  Socialists,  I.  W.  W., 
and  Non-Partisan  League  leaders,  failed  in  every 
county  except  one.  The  American  farmer  would 
have  nothing  to  do  with  the  radical,  and  the  legisla- 
tive ticket  nominated  was  even  more  overwhelm- 
ingly favorable  to  the  Industrial  Court  than  that 
which  adopted  it. 

In  addition,  the  results  in  Kansas  were  more 
emphatic  than  the  results  in  Massachusetts  when 
Calvin  Coolidge  was  re-elected  following  the  police 
strike.  An  aroused  Americanism  was  asserting 
itself  in  a  reaction  which  we  hope  will  not  be  merely 
temporary. 

Horace  Greeley  once  said,  "The  American  people 
are  a  great  people  when  you  make  them  mad." 
Just  now  we  are  mad  over  the  audacity  of  the  classes, 
but  we  must  beware  lest  we  allow  this  sentiment  to 
lead  us  into  reprisals.  It  should  merely  form  the 
background  against  which  determined  and  wise 
legislation  may  take  sufficient  courage  to  build  a 
system  of  impartial  justice. 


THE  FIRST  PUBLIC  TEST  15 

Foregoing,  in  brief,  are  the  salient  points  of  the 
trial  by  ballot  in  both  the  primary  and  general  elec- 
tions before  a  jury  consisting  of  the  Kansas  people. 
The  jury  had  two  chances  at  expression — once  in 
the  August  primaries  and  then  in  the  general  election 
in  November.  The  result  was  a  clear-cut  vindica- 
tion of  the  law  in  so  far  as  its  standing  in  the  minds 
of  the  people  is  concerned.  The  fight  was  bitter 
and  vindictive  in  many  cases,  but  even  the  opponents 
of  the  law  have  accepted  the  result  in  good  humor. 
Such  is  the  way  of  the  American  Republic. 


II 

A    COURT   WITH   A   HEART 

A  MAN  with  a  peg  leg,  dressed  in  faded  and 
greasy  blue  overalls,  stood  before  the  Kansas 
Industrial  Court  one  day  in  the  summer  of 
1920.  He  was  a  plaintiff  in  the  case  of  the  Stationary 
Firemen  and  Oilers,  and  his  duties  were  that  of 
tender  at  a  turntable. 

He  had  a  wife  and  six  children,  he  said,  and  had 
been  getting  $97  a  month — equivalent  to  about  $45 
a  month  before  the  war.  It  seems  that  the  railroad 
brotherhoods  had  not  included  him  or  his  union  in 
their  efforts  to  secure  higher  wages  and  better  work- 
ing conditions. 

He  testified  that  he  worked  seven  days  a  week 
and  when  he  came  home  at  night  he  would  help 
his  wife  do  the  washing  which  they  solicited  in  order 
to  keep  starvation  away.  Upon  close  questioning 
he  told  some  other  startling  facts.  It  was  not  un- 
usual, he  said,  for  him  to  take  home  a  large  part  of 
his  noonday  lunch  that  his  wife  had  put  up  for  him, 
and  to  put  it  back  surreptitiously  with  the  other  food 
at  night  so  that  the  children  might  have  enough. 


A  COURT  WITH  A  HEART  17 

And  then  he  would  start  in  at  nightfall  and  help 
get  out  a  washing. 

The  presiding  judge  of  the  Industrial  Court  told 
these  things,  among  other  incidents  of  the  kind,  to  a 
friend  one  day,  and  he  got  up  from  his  chair  and 
paced  back  and  forth.  Once  his  voice  stopped  and 
he  went  over  to  the  window  and  stood  for  a  long 
time,  saying  nothing.  He  is  rather  phlegmatic — 
some  call  him  cold  and  some  say  he  is  partial 
to  corporations.  Suddenly  he  turned  and  almost 
shouted,  as  men  do  sometimes  when  they  want  to 
conceal  their  emotions:  "This  is  more  than  a  law! 
It's  more  like  gospel.  If  the  people  would  only 
understand  it!  Oh,  if  we  were  only  thinking  of  the 
safety  of  the  public  we  wouldn't  be  nearly  so  con- 
cerned! Why,  this  thing  is  more  than  that!  It 
means  justice  to  a  man  who  has  never  had  a  chance 
to  get  it  in  such  matters  before." 

The  laborer  was  given  an  increase  of  more  than 
30  per  cent.  He  belonged  to  a  large  and  important 
class  of  railway  labor  for  which  the  four  brother- 
hoods have  done  nothing.  In  all  the  discussions  of 
the  Kansas  law  the  importance  of  protecting  the 
public  has  been  stressed,  and  rightly  so.  Before 
entering  upon  a  detailed  description  of  the  events 
leading  up  to  its  creation  and  enlarging  upon  the 
necessity  for  protecting  the  public,  it  may  be  of 
interest  to  give  a  number  of  outstanding  facts  in 
relation  to  the  operation  of  the  court  in  the  first 
nine  months  of  its  existence  and  a  number  of  in- 


i8    THE  PARTY  OF  THE  THIRD  PART 

stances  showing  what  the  court  has  done  for  labor. 
The  record  shows  that  the  court  is  a  very  human 
one,  responding  to  human  needs. 

That  the  court  attracted  the  instant  approval  and 
interest  of  conservative  elements  of  organized  labor 
is  proven  by  the  fact  that  during  the  first  few 
months  of  its  operation  about  fifteen  petitions  were 
filed  with  the  court  by  members  of  union  labor  in 
the  various  crafts  representing  railways,  mining, 
packing,  milling,  and  power  industries.  Of  these 
petitions  practically  three  fourths  were  disposed  of 
before  the  1st  of  August,  1920.  In  at  least  twelve 
of  the  wage  cases  decisions  have  been  rendered 
increasing  wages,  and  every  award  but  one  has  been 
accepted  with  sympathetic  co-operation  both  by  the 
laborers  who  filed  the  petition  and  by  the  employers. 

The  one  exception  is  that  of  the  Stationary  Fire- 
men and  Oilers,  just  mentioned.  Under  the  law 
either  side  may  appeal  from  the  award  directly  to 
the  supreme  court.  The  case  was  brought  into 
court  by  H.  W.  Wendele,  one  of  the  vice  presi- 
dents of  the  International  Brotherhood  of  Firemen 
and  Oilers.  He  is  also  vice  president  for  Kansas 
of  the  American  Federation  of  Labor.  The  award 
of  the  court  in  this  case  increased  the  minimum 
wage  of  this  craft  from  35  cents  to  45  cents  per  hour, 
and  the  maximum  from  42  cents  to  55  cents  per 
hour.  It  also  allowed  the  men  time  and  a  half  for 
Sunday  work. 

The  railways  appealed  from  this  decision  on  the 


A  COURT  WITH  A  HEART  19 

ground  that  since  the  Federal  government  has 
established  the  Federal  Wage  Board  for  railway 
crafts,  the  Kansas  court  had  no  jurisdiction  in  this 
case.  The  appeal  is  now  pending.  A  few  weeks  ago 
the  Federal  Wage  Board  rendered  its  decision 
touching  the  wages  of  this  brotherhood.  It  is  in- 
teresting to  compare  the  award  of  the  Federal  board 
with  that  previously  made  by  the  Kansas  Industrial 
Court.  The  Federal  board's  award  is  about  3  per 
cent  under  that  of  the  Kansas  court,  except  that  the 
Federal  board  gives  no  recognition  of  the  justice 
of  a  larger  pay  for  Sunday  employment. 

Mr.  Wendele  has  made  a  public  statement  to  the 
effect  that  the  award  by  the  Kansas  Industrial  Court 
is  regarded  as  a  much  more  just  and  substantial 
recognition  of  the  rights  of  this  craft  than  is  con- 
tained in  the  decision  of  the  Federal  Wage  Board. 

W.  E.  Freeman,  president  of  the  Kansas  Federa- 
tion of  Labor,  brought  the  case  for  the  members  of 
the  Amalgamated  Association  of  Street  and  Electric 
Railway  Employees  of  America,  against  the  Joplin 
&  Pittsburg  Railway  Company.  The  court  allowed 
a  scale  increasing  the  maximum  pay  of  motormen 
and  conductors  from  42  to  55  cents  per  hour,  black- 
smiths from  49>£  to  55  cents  per  hour,  machinists 
from  51^  to  55  cents,  armature  winders  from  51^ 
to  60  cents;  headlight,  taillight,  and  telephone  men 
from  $126  to  $135  per  month.  Helpers  and  other 
minor  employees  were  given  corresponding  increases. 

The  order  of  the  court  making  these  increases  was 


20    THE  PARTY  OF  THE  THIRD  PART 

obeyed  by  the  railway  company,  and  the  increases 
were  satisfactory  both  to  the  employees  and  to  the 
operators.  This  case  attracted  considerable  atten- 
tion through  the  fact  that  there  had  been,  during 
the  last  three  years,  two  destructive  strikes  upon 
this  railway.  One  of  them  lasted  ninety  days  and 
cost  the  employees,  the  company,  and  the  com- 
munity which  the  railway  served  many  thousands 
of  dollars,  while  the  community  which  the  railway 
served  was  badly  crippled  through  the  loss  of  this 
important  adjunct  to  its  commercial  and  social  life. 
In  deciding  this  case  the  Kansas  Industrial  Court 
exhibited  the  real  spirit  of  the  institution.  The 
presiding  judge  discussed  in  his  decision  the  sug- 
gestion of  a  living  wage,  saying: 

A  living  wage  may  be  defined  as  a  wage  which  enables  the 
worker  to  supply  himself,  and  those  absolutely  dependent  upon 
him,  with  sufficient  food  to  maintain  life  and  health,  with  a  shel- 
ter from  the  inclemencies  of  the  weather,  with  sufficient  clothing 
to  preserve  the  body  from  cold,  and  to  enable  persons  to  mingle 
among  their  fellows  in  such  ways  as  may  be  necessary  in  the 
preservation  of  Kfe,  But  it  is  not  a  living  wage  only  which  this 
coart  is  commanded  Ly  tl*e  people  of  this  state  to  assure  workers 
engaged  in  these  essential  industries. 

After  enumerating  the  classes  of  employment  con- 
cerned in  the  order  and  pointing  out  the  various  de- 
grees of  value  which  their  services  offered,  the 
presiding  judge  says: 

Such  persons,  in  all  fairness,  are  entitled  to  a  wage  which  will 
enable  them  to  procure  for  themselves  and  their  families  all  the 
necessaries  and  a  reasonable  share  of  the  comforts  of  life.  They 
are  entitled  to  a  wage  which  will  enable  them,  by  industry  and 


A  COURT  WITH  A  HEART  21 

economy,  not  only  to  supply  themselves  with  opportunities  for 
intellectual  advancement  and  reasonable  recreation,  but  also  to 
enable  the  parents,  working  together,  to  furnish  to  the  children 
ample  opportunities  for  intellectual  and  moral  advancement, 
for  education,  and  for  an  equal  opportunity  in  the  race  of  life. 
A  fair  wage  will  also  allow  the  frugal  man  to  provide  reasonably 
for  sickness  and  old  age. 

The  Topeka  local  union  of  the  Amalgamated  As- 
sociation of  Electric  and  Street  Railway  Employees 
brought  an  action  through  local  officers,  assisted 
by  one  of  the  International  vice  presidents.  The 
court  granted  an  increase  in  wages  ranging  from 
10  to  15  cents  per  hour.  This  increase  was  ac- 
cepted by  both  operators  and  employers,  and  the 
peaceful  conclusion  offers  a  very  sharp  contrast  to 
the  experience  of  Denver,  where  the  weapon  of  the 
strike  was  employed  and  which,  before  it  was  adju- 
dicated, brought  the  loss  of  several  lives  and  the  loss 
of  millions  to  the  public,  the  employees,  and  the 
traffic  lines. 

One  of  the  provisions  of  the  law  is  that  laborers 
or  employers  in  nonessential  industries  may,  by 
common  agreement,  appeal  to  the  court  for  the 
adjudication  of  controversies,  and  the  decision, 
when  rendered  in  a  voluntary  appeal,  becomes 
binding  as  though  it  were  rendered  in  an  essential 
industry.  This  feature  of  the  law  has  been  used  and 
promises  to  offer  a  valuable  departure. 

Another  development  of  value  is  in  the  effect  which 
the  presence  of  the  court  has  in  lessening  labor 
controversies.  This  is  mentioned  in  another  chapter. 


22    THE  PARTY  OF  THE  THIRD  PART 

There  has  been  a  constant  increase  since  the 
establishment  of  the  court  in  the  number  of  laboring 
men  who  approve  it.  With  practically  all  the  union- 
labor  leaders  fighting  the  idea,  it  was  unavoidable 
that  union  labor  should  gain  a  misconception  of  the 
purposes  of  the  court,  but  with  their  better  under- 
standing of  it  the  conservative  element  in  labor  is 
coming  to  believe  in  its  remedies.  This  is  par- 
ticularly noted  in  the  coal-mining  district,  where 
Alexander  Howat's  loss  of  leadership  is  directly 
traceable  to  his  virulent  and  unreasoning  fight  upon 
the  court. 

After  the  law  was  passed  and  some  of  Howat's 
miners  had  appealed  to  the  court  for  the  adjudication 
of  grievances  he  called  a  meeting  of  the  United 
Miners  of  his  district  and  secured  the  adoption 
of  amendments  to  the  constitution  of  the  organiza- 
tion, which  provided  that  thereafter  any  miner  who 
should  take  his  grievance  to  the  Court  of  Industrial 
Relations  should  be  fined  $50  for  appealing  to  the 
Kansas  court.  Any  miners'  official  or  miners'  local 
union  which  should  use  the  court  should  be  fined 
$500.  The  action  with  which  the  court  met  this 
effort  of  Howat  to  annul  the  Kansas  law  was  to 
instruct  the  operators  not  to  pay,  under  the  check-off 
system,  any  fines  assessed  under  these  provisions  of 
the  United  Mine  Workers'  constitution. 

When,  subsequently,  the  Industrial  Court  sought 
testimony  in  a  case  brought  by  some  of  the  miners, 
setting  forth  grievances  against  operators,  Howat 


A  COURT  WITH  A  HEART  23 

refused  to  testify,  stating  that  his  refusal  was  based 
upon  the  fact  that  he  did  not  recognize  the  court. 
The  district  court  of  Crawford  County  ordered  him 
to  testify,  and,  upon  his  refusal,  sent  him  to  the 
county  jail.  He  was  released  from  the  county  jail 
under  an  appeal  bond,  taking  his  case  to  the  su- 
preme court  of  the  state  to  test  the  constitutionality 
of  the  law.  The  supreme  court  held  the  law  to  be 
constitutional  and  Howat  prepared  an  appeal  to  the 
Supreme  Court  of  the  United  States. 

An  injunction  was  also  granted,  forbidding  Howat 
to  call  a  strike,  as  he  had  threatened  to  do,  and  a 
hearing  was  had  for  the  purpose  of  enlarging  the 
present  order  of  the  district  court. 

An  instance  of  the  unreasonable  leadership  ex- 
ercised by  radicals  is  shown  in  the  case  of  a  young 
American  Irishman  who  was  a  witness  before  the 
Industrial  Court  in  a  hearing  of  a  coal  strike  against 
the  Central  Coal  and  Coke  Company.  He  testi- 
fied that  the  men  were  called  out  on  a  strike  in 
June  or  July,  1919,  by  Howat.  The  young  man 
had  a  wife  and  children  and  wanted  work  to  keep 
them  supplied  with  necessities.  He  went  to  Howat 
aft^  -  a  week  or  two  and  asked  him  what  the  prospects 
were  to  get  back  on  the  job. 

"Well,  I  don't  know,"  said  Howat. 

"What  did  you  call  the  strike  for?" 

"Well,  that's  a  long  story,"  was  Howat's  paralyz- 
ing reply.  "I  can't  tell  you  now;  I  will  tell  you 
sometime." 


24    THE  PARTY  OF  THE  THIRD  PART 

He  happened  to  belong  to  a  church  and  was 
anxious  to  stay  in  the  district,  otherwise  he  would 
have  moved  away.  He  stayed  around,  doing  a  few 
odd  jobs,  and  soon  began  to  feel  a  severe  pinch  of 
want.  During  the  strike  period  his  wife  did  not 
have  any  new  clothing  or  shoes,  and  meat  was  a 
scarce  article  on  the  table.  The  strike  was  never 
called  off  until  Judge  Anderson  at  Indianapolis  took 
a  hand,  and  the  young  man  does  not  know  to  this 
day  what  the  strike  was  about. 

Then  there  was  the  case  of  Alex  McAlester. 

McAlester  is  the  oldest  shot  firer  in  the  Kansas 
coal  fields.  His  occupation  is  a  rather  dangerous 
one,  and  very  important. 

Under  pre-war  conditions  a  shot  firer  was  paid  a 
basic  wage  of  $2.80  a  day  for  firing  at  forty  places, 
and  pro  rata  above  that  figure  when  more  places 
were  to  be  fired.  When  war  conditions  came  the 
operators  desired  to  save  man  power  and  required 
the  shot  firers  to  do  more  work,  but  without  increas- 
ing their  pay  over  a  65-place  basis.  For  a  long  time 
McAlester,  as  head  of  his  union,  tried  to  get  Howat 
to  secure  a  raise,  but  the  mine  leader  refused. 

When  the  Industrial  Court  was  established 
McAlester  was  one  of  the  first  to  appear  with  a  re- 
quest for  higher  wages,  disregarding  the  threat  of  a 
fine. 

One  of  the  members  of  the  court  asked  him  if  he 
knew  of  the  penalty  he  had  incurred  at  the  handc  of 
the  union  leader. 


A  COURT  WITH  A  HEART  25 

"I'm  not  afraid,"  he  said.  "I've  got  a  right  to 
bring  this  case.  I'm  an  American  citizen." 

The  court  investigated  the  case  and  set  a  date  for 
the  hearing.  At  the  date  set  for  this  hearing 
McAlester  appeared  with  a  check  in  his  hand. 

He  then  informed  the  court  that  the  check  covered 
every  raise  asked  for  by  his  union,  and  the  raise 
dated  back  to  the  filing  of  the  complaint.  As 
soon  as  the  miners'  president  learned  they  had 
taken  the  case  into  the  Industrial  Court  he  took 
the  matter  up  with  the  operators.  McAlester 
thanked  the  court  and  said  that  until  its  estab- 
lishment he  and  his  union  had  had  no  place  to 
go  with  their  troubles,  for  no  one  would  pay  any 
attention  to  their  claims. 

A  paradoxical  instance  came  up  in  the  form  of  an 
application  for  relief  by  Fred  Keivis,  in  behalf  of 
the  street-railway  employees  of  Hutchinson.  Kervis 
was  a  candidate  for  the  legislature  from  that  district 
and  made  his  campaign  upon  the  issue  of  opposition 
to  the  Industrial  Court.  He  is  a  Democrat  wkh 
pronounced  radical  leanings,  and  has  been  active  in 
radical  labor  activities.  His  application  was  for 
higher  wages  for  the  street-railway  employees.  The 
case  was  heard  and  an  agreement  was  reached  in 
open  court  between  the  employees  and  employers. 
In  the  official  record  of  the  court  proceedings  is  found 
the  statement  by  Kervis  that  the  court  had  been 
very  considerate  and  that  the  adjustment  was  very 
satisfactory.  This  case  was  disposed  of  before 


26    THE  PARTY  OF  THE  THIRD  PART 

election,  but  Kervis  continued  in  his  opposition  and 
was  defeated. 

A  switchman  named  W.  F.  Long,  from  Parsons,  has 
written  a  complaint  to  the  court  which  is  probably 
one  of  the  most  remarkable  documents  of  its  kind 
in  labor  history. 

He  was  one  of  the  so-called  "outlaw"  switchmen 
who  went  out  on  a  strike  in  Kansas  City.  After 
remaining  idle  for  some  time  he  went  to  Parsons  and 
secured  a  job  on  the  M.,  K.  &  T.  Railway.  After 
working  two  days,  according  to  his  statement,  he 
was  notified  by  the  company  that  he  was  discharged, 
the  reason  being  that  the  Railway  Brotherhood  had 
demanded  his  discharge  from  his  employment  be- 
cause he  had  gone  out  on  an  unauthorized  strike. 

If  the  court  handles  cases  of  this  kind  it  will  be 
confronted  with  a  variety  of  problems,  but  the 
salient  feature  is  that  the  Brotherhood  apparently 
has  denied  the  "divine  right"  of  Long  to  quit  work, 
and  the  principal  argument  used  by  Brotherhood 
leaders — erroneously,  of  course — is  that  the  In- 
dustrial Court  abrogates  the  "divine  right"  to  quit 
work.  If  the  case  goes  to  trial  and  if  the  Brotherhood 
officials  are  brought  into  court  there  will  be  seen 
the  spectacle  of  the  union  leaders  denying  this 
"divine  right."  As  will  be  seen  in  subsequent 
chapters,  the  court  does  not  contemplate  prohibiting 
anyone  from  quitting  work  unless  that  quitting 
threatens  serious  derangement  of  some  vital  industry. 

The  Kansas  miners  sometimes  have  to  have  money 


A  COURT  WITH  A  HEART  27 

between  the  semimonthly  pay  days.  They  "borrow" 
money  from  the  companies,  out  of  wages  already  due 
them.  The  average  period  for  these  loans  is  one 
week.  For  this  service,  which  is  quite  generally 
utilized,  the  companies  have  charged  10  per  cent, 
or  at  the  rate  of  520  per  cent  a  year.  The  union 
officials  had  never  tried  to  do  away  with  this  gouge. 
The  Industrial  Court  wiped  it  out  in  eighteen 
minutes  without  a  formal  trial. 

The  unofficial  record  of  the  Kansas  tribunal — one 
of  the  things  that  puts  the  heart  into  it — is  by  no 
means  an  insignificant  part  of  the  story.  Like  the 
proposed  machinery  of  the  President's  Industrial 
Council,  the  court  operates  so  as  to  let  sunlight  into 
dark  places,  to  encourage  voluntary  conciliation 
between  employers  and  employees,  and  to  remedy 
unwholesome  living  and  working  conditions. 

Its  report  of  the  survey  of  the  Kansas  mining 
region,  being  given  out  from  time  to  time,  is  an 
interesting  chronicle  of  life  interest. 

The  evidence  shows  that  there  are  from  10,000  to  12,000 
miners  engaged  in  the  field  [recites  the  report].  Fewer  than 
500  of  them  were  born  of  English-speaking  parents.  Most  of 
them  were  brought  in  large  numbers  by  the  owners  of  the  mines, 
direct  from  Europe.  They  are  Italians,  Sicilians,  Poles,  Slavs, 
Austrians,  a  few  Germans,  and  people  of  other  racial  types, 
principally  from  southern  Europe.  They  were  brought  in  as 
nonunion  laborers,  but  are  now  100  per  cent  unionized.  They 
were  housed  in  cheap  wooden  houses  owned  by  the  companies, 
unplastered,  but  ceiled,  and  located  in  what  were  called  camps 
or  little  settlements  surrounding  the  mines. 

The  evidence  shows  that  there  was  little,  if  any,  religious 


28    THE  PARTY  OF.  THE  THIRD  PART 

work  done  among  them  in  the  early  days.  There  was  a  strong 
Socialist  settlement.  The  Appeal  to  Reason,  a  Socialist  paper 
suppressed  for  a  time  during  the  war,  was  published  in  the  dis- 
trict. A  large  proportion  of  the  miners  became  Socialists. 

There  was  no  evidence  produced  by  the  operators  that  shows 
any  benevolent  action  toward  these  strangers  from  Europe  who 
were  brought  in  to  work  the  mines.  No  welfare  work  was  done. 
No  money  was  spent  except  where  absolutely  necessary.  The 
houses  were  mere  shells.  The  rent  charged  was  very  high,  con- 
sidering investment.  Several  miners  testified  that  there  was  a 
suspicion  among  the  miners  that  some  of  the  strikes  were  called 
through  collusion  between  the  union  officials  and  operators,  in 
order  to  create  a  scarcity,  and  therefore  a  brisk  market.  Some 
evidence  was  introduced  that  intimidation  and  duress  were  used 
by  the  miners'  union  officials  in  the  government  of  the  mines, 
so  that  men  who  wanted  to  obey  their  contracts  and  wanted  to 
work  were  not  permitted  to  do  so  through  fear  of  physical 
violence. 

A  man  must  pay  fifty  dollars  in  order  to  join  the  union,  and 
thus  be  permitted  to  work.  Large  sums  of  money  are  raised, 
not  only  by  regular  dues,  but  by  special  assessments  and  fines 
imposed  upon  miners  by  the  union  officials.  The  evidence  shows 
that  union  officials  have  misappropriated  considerable  sums  of 
money  out  of  funds  collected  by  fines  and  assessments.  Ten 
thousand  dollars  was  sent  to  a  Socialist  newspaper  in  Oklahoma. 
Large  sums  were  paid  to  attorneys  who,  the  miners  testified, 
rendered  no  service  to  the  organization.  Money  was  used  to 
assist  in  the  defense  of  the  I.  W.  W.  A  cash  bond  was  put  up 
in  one  instance  for  a  man  under  indictment  for  conspiracy  to 
overthrow7  the  United  States  government. 

One  bright  spot  in  the  investigation,  according  to 
the  report,  was  the  fact  that  Americanism  flourished 
in  the  schools  in  spite  of  unfavorable  surroundings. 
Children  of  immigrant  miners  were  asked  how  many 
Italians,  how  many  Austrians,  how  many  Russians 
there  were  among  them,  and  not  a  sign  was  made. 


A  COURT  WITH  A  HEART  29 

When  the  count  for  Americans  was  suggested  every 
hand  was  raised. 

Here  in  the  Pittsburg,  Kansas,  mining  districts 
is  a  typical  cross  section  of  the  restive,  badly  led 
foreign  element,  being  painfully  and  gradually 
assimilated  into  American  life  under  unfavorable 
industrial  conditions.  Who,  heretofore,  has  taken 
the  trouble  to  apply  the  healing  hand ?  The  unions? 
The  mine  owners  ?  The  national  government  ?  Who 
has  shielded  the  bedeviled  workers  from  greedy 
employers  on  one  hand  and  selfish  demagogic 
agitators  on  the  other  hand?  Who  has  placed  a 
friendly  arm  on  Alex  McAlester's  shoulder  and  said, 
"We  represent  the  public  and  wish  you  well"? 

The  strange  arm  is  the  new  court  with  the  friendly 
touch — the  court  backed  by  the  just  but  kindly 
sentiment  of  the  majority — the  court  that  looks  out 
beyond  the  pale  of  special  selfish  interest  and 
declares  in  behalf  of  the  public  that  the  laborer  is 
worthy  of  his  hire  and  that  the  right  to  live  is  greater 
than  the  right  to  strike. 

The  first  case  formally  adjudicated  by  this 
tribunal  was  that  of  the  state  of  Kansas  against  the 
Topeka  Edison  Company.  The  Edison  Company 
is  impressed  with  a  public  interest  such  as  to  bring  it 
within  the  purview  of  the  new  law,  being  engaged  in 
the  business  of  transportation  and  furnishing  neces- 
sary electric  current.  The  case  was  brought  in 
behalf  of  local  union  No.  841  of  the  International 
Brotherhood  of  Electrical  Workers.  They  were 


30    THE  PARTY  OF  THE  THIRD  PART 

granted  an  increase  of  wages  in  accordance  with  the 
scale  in  cities  similarly  situated.  The  court  took 
into  consideration  the  cost  of  living  as  well  as  a 
comparison  with  wage  scales  elsewhere,  the  hazard 
of  the  tasks  involved,  and  the  degree  of  skill  required. 

The  second  case  was  that  of  a  union  of  street  and 
electric  railway  employees  against  the  Joplin  & 
Pittsburg  Railway  Company.  Here  again  an  in- 
crease in  wages  was  awarded  on  the  basis  of  pains- 
taking investigation  and  comparison. 

Other  cases  disposed  of  in  order  were  as  follows : 

Linemen  of  the  Pittsburg  &  Joplin  Railway  Com- 
pany, increase  granted. 

Train  dispatchers,  no  increase  allowed. 

Foremen  of  trackmen,  increase  allowed. 

Substation  operators,  no  increase  allowed. 

Trackmen,  increase  granted. 

Vandenburg  et  al.  versus  Wichita  Railway  and  Light 
Co.,  increased  wages  allowed.  This  case  affected  a 
large  number  of  street  railway  employees. 

A.  G.  Weide  et  al.  versus  Kansas  Flour  Mills  Com- 
pany, Great  Bend,  findings  issued  on  working 
conditions. 

Topeka  Railway  Company,  wage  increase  allowed 
employees. 

E.  H.  Sowers  versus  Atchison  Railway,  Light  and 
Power  Co.,  increase  in  wages  granted. 

A.  H.  Martin  et  al.  versus  Santa  Fe  and  Union 
Pacific  Railway  companies,  dismissed  on  account 
of  Federal  Labor  Board  award. 


A  COURT  WITH  A  HEART  31 

J.  W.  Arendt  et  al.,  Goodland,  versus  Rock  Island 
Railway,  working  conditions  improved  by  agree- 
ment of  parties. 

The  last-named  case  is  of  especial  interest  inas- 
much as  the  settlement  remedied  a  condition  of 
thirteen  years'  standing.  At  Goodland,  the  home  of 
some  of  the  Rock  Island  shops,  there  are  car  sheds 
that  have  stood  thirteen  years  without  being  inclosed. 
A  defect  in  the  old  law  made  it  impossible  to  compel 
the  railroad  to  remedy  the  situation.  The  attention 
of  the  United  States  Railroad  Administration  was 
called  to  it  without  result.  In  the  summer  of  1920 
the  Kansas  Industrial  Court  issued  an  order  that  the 
sheds  should  be  inclosed  in  order  to  shelter  the  work- 
men in  cold  and  inclement  weather,  and  they  are 
now  inclosed. 

In  the  case  of  the  Stationary  Firemen  and  Oilers, 
to  which  frequent  reference  has  been  made,  the 
opinion,  filed  June  15,  1920,  contains  some  interest- 
ing points. 

It  finds  that  some  of  the  workers  were  not  getting  a 
wage  large  enough  to  support  their  families.  In  dis- 
cussing a  possible  conflict  with  the  Federal  Transpor- 
tation Act  of  1920  the  point  is  made  that  the  order 
made  by  the  Kansas  Industrial  Court  is  temporary  in 
its  nature  and  meant  to  be  enforceable  until  the  par- 
ties may  agree,  and  is  provided  for  the  protection  of 
the  general  public  against  the  inconvenience,  hard- 
ship, and  suffering  following  in  the  wake  of  industrial 
warfare.  A  part  of  the  decision  follows : 


32    THE  PARTY  OF  THE  THIRD  PART 

From  the  evidence  in  this  case  it  seems  to  the  court  plain 
that  there  is  a  material  controversy,  and  that  there  is  danger 
that  such  controversy  may  terminate  in  a  cessation  of  work  on 
the  part  of  a  large  number  of  complaints  which  might  result 
very  seriously  to  the  public.  It  is  argued  that  the  men  will  not 
strike  because  the  Kansas  law  makes  the  strike  unlawful. 
Nevertheless,  the  Kansas  law  distinctly  recognizes  the  right  of 
these  men  to  quit  their  employment  any  time,  and  the  mere 
fact  that  in  large  numbers  they  should  become  disgusted  with 
the  wage  and  with  the  conditions  under  which  they  work,  would 
entitle  them  to  quit  at  any  time.  These  men  are  required  to 
work  seven  days  in  the  week  in  order  to  earn  sufficient  wage 
to  support  their  families  even  scantily.  The  evidence  shows  a 
state  of  facts  which  would  unquestionably  warrant  this  court  in 
taking  jurisdiction  in  order  to  preserve  the  public  peace,  protect 
the  public  health,  and  promote  the  general  welfare. 

The  tribunal  is  conducting  a  survey  of  the  principal 
industrial  centers  of  the  state  for  the  purpose  of 
remedying  housing  conditions  and  of  taking  other 
constructive  measures  for  the  welfare  of  the  workers. 
It  has  undertaken  a  big  job,  but  it  is  backed  by  the 
law  and  public  opinion  and  its  members  are  going  at 
the  job  with  initiative  and  enthusiasm.  It  partakes 
more  of  legislative  than  of  judicial  sanction,  but  its 
final  effects  are  of  judicial  nature,  since  the  opinions 
of  the  court  may  be  given  the  effect  of  decisions 
upon  appeal  to  any  court  of  competent  jurisdiction. 

The  members  of  the  court  at  present  are:  W.  L. 
Huggins,  lawyer,  presiding  judge;  George  H.  Wark, 
lawyer;  and  Clyde  M.  Reed,  newspaper  man. 

One  of  the  chief  arguments  of  organized  labor 
against  the  court  heard  thus  far  is  that  the  judges 
should  be  chosen  directly  by  the  people  rather  than 


A  COURT  WITH  A  HEART  33 

through  executive  appointment.  The  objection  to 
this  process  of  selection  is  rather  obvious.  It  would 
lead  at  once  to  an  effort  on  the  part  of  labor  and  of 
employing  capital  to  choose  the  judges  of  the 
Industrial  Court  and  the  positions  would  become 
political  footballs  in  every  election  because  these 
offices  are  of  especial  interest  to  both  capital  and 
labor.  To  prevent  this  unfortunate  interference 
with  the  impartial  purposes  of  the  court  the  judges 
were  made  appointive,  with  overlapping  terms  so 
that  the  court  is  safeguarded  against  the  possibility 
that  any  one  Governor  would  have  the  appointment 
of  the  entire  personnel. 

The  objection  that  the  court  is  thus  removed  from 
the  direct  action  of  the  voters  is  met  by  the  fact  that 
the  Governor  of  the  state  is  always  responsible  to 
the  voters  for  the  appointment  of  any  judge  upon 
this  court,  and  the  supreme  court  judges  of  the  state, 
to  whom  final  appeal  may  be  taken,  are  also  elected 
by  the  direct  vote  of  the  people  and  responsible  for 
their  decisions.  This,  it  has  seemed  to  us,  has 
properly  safeguarded  the  interests  of  all  classes  and 
has  reduced  the  danger  of  the  nullification  of  the 
purposes  of  the  law  by  the  factional  elections  of  the 
Industrial  Court  judges. 

During  the  recent  campaign  the  wisdom  of  making 
the  judges  appointive  became  evident  in  localities 
where  recent  increases  in  public  utility  rates  had 
created  tender  spots.  The  name  of  the  judge  who 
happened  to  write  the  decision  was  known  and  thus 
3 


34 

the  judge  was  personally  attacked  by  newspaper 
organs  unfriendly  to  the  administration.  If  he  had 
been  up  for  election  he  would  have  borne  the  brunt 
of  the  attack  and  a  temporary  gust  of  passion  or 
prejudice  might  cause  judges  to  become  affected  by 
the  pressure  of  public  feeling  or  by  fear  of  political 
defeat.  It  will  be  shown  in  subsequent  chapters 
why  an  industrial  court  should  be  an  integral  body 
and  not  a  collection  of  individuals  with  separate  in- 
fluences bearing  upon  each  one.  Making  the 
judges  elective  might  at  once  cause  them  to  seek 
office  independently  and  by  appeal  to  certain  class 
interests. 

The  sentiment  of  organized  labor  toward  the  court 
seems  to  be  growing  more  friendly.  Perhaps  the  most 
concise  statement  of  the  attitude  of  conservative 
organized  labor  toward  the  new  law  is  made  by 
Charles  W.  Fear,  editor  of  the  Missouri  Trades 
Unionist,  who  says: 

We  know  that  workingmen  with  whom  we  have  discussed  the 
question  declare  the  law  is  a  move  in  the  right  direction  for  peace 
in  the  labor  world.  Why  not  give  the  law  a  trial  and  have  it 
amended  where  it  is  needed  ? 

This  year  in  the  Kansas  coal-mining  field  will  show 
a  total  production  of  seven  million  tons,  according  to 
late  figures.  This  is  an  unprecedented  figure,  the 
average  previously  being  about  five  and  a  half 
million  tons.  A  more  contented  atmosphere  pre- 
vails in  the  fields  and  the  work  of  the  court  is  bearing 
fruit. 


A  COURT  WITH  A  HEART  35 

A  case  which  has  attracted  unusual  attention  is 
that  of  several  flour  mills  of  Topeka,  from  the  fact 
that  it  had  to  do  with  an  unusual  feature  of  the  law. 

The  price  of  wheat  went  down  to  a  figure  below 
$1.50  in  Kansas  at  points  of  origin  late  in  the  autumn 
of  1920.  This  was  below  the  cost  of  production,  the 
farmers  claimed,  and  they  began  to  hold  back  ship- 
ments to  the  mills.  The  National  Wheat  Growers' 
Association,  composed  of  a  large  number  of  farmers  in 
Kansas  and  other  states,  announced  that  an  effort 
would  be  made  to  hold  the  wheat  for  a  price  of 
$3  a  bushel. 

The  propaganda  was  at  least  partially  successful. 
At  any  rate,  a  shortage  began  to  be  noticed. 

A  number  of  mills  in  Topeka  closed  down  and  let 
out  some  of  their  employees.  It  seems  they  had 
neglected  a  careful  reading  of  the  Industrial  Court 
law,  which  provides  that  any  establishment  engaged 
in  the  manufacture  or  preparation  of  food  products 
must  not  close  down  or  curtail  production  without  a 
hearing  before  the  Industrial  Court  and  the  receipt 
of  permission  for  such  curtailment. 

The  court  at  once  issued  a  summons  to  the  owners 
of  the  mills,  citing  them  to  appear  and  answer  to  the 
charge  of  curtailment  of  production. 

It  was  a  novel  action.  Probably  nothing  of  the 
kind  had  ever  taken  place  before. 

The  mills  obeyed  the  summons.  Upon  a  hearing 
of  the  circumstances  the  necessary  permission  to 
reduce  output  was  secured. 


36    THE  PARTY  OF  THE  THIRD  PART 

Overcritical  observers  of  the  court  have  pointed 
to  the  Kansas  flour-mills  case  as  an  instance  of  a 
court  trying  to  force  an  industry  to  continue  at  a  loss. 
Of  course  it  was  nothing  of  the  kind.  Those  who 
make  the  contention  have  missed  the  point,  forgetting 
that  the  essential  consideration  is  that  of  police 
power,  to  be  discussed  later  in  this  book. 

It  is  self-evident  that  no  employer  can  be  forced 
to  hire  workers  at  a  loss  to  himself.  The  law  cannot 
be  construed  so  as  to  force  him  to  do  so.  It  is 
specifically  stated,  to  make  assurance  doubly  strong, 
that  the  employer  is  to  have  a  fair  profit  in  pro- 
duction. 

In  the  second  place,  no  reasonable  person  believes 
that  any  court  in  America  could  or  would  attempt 
to  compel  any  manufacturer  to  produce  something 
out  of  nothing.  If  there  is  no  wheat  to  be  had  no 
flour  can  be  milled.  One  must  give  courts  credit  for 
common  sense,  and  an  industrial  court  is  entitled 
to  the  same  amount  of  this  commodity  as  a  civil 
court. 

In  the  third  place,  it  is  plain  from  the  spirit  and 
letter  of  the  law  that  no  attempt  will  be  made  to 
force  a  continuation  of  production  under  difficult 
circumstances  unless  the  very  lives  or  health  of  the 
public  are  endangered.  That  is  where  the  police 
power  of  the  state  enters  into  the  calculation. 

Now  we  come  to  the  employee's  side  of  this 
question. 

In  the  slacking-up  period  noticed  in  many  in- 


A  COURT  WITH  A  HEART  37 

dustrial  circles  in  the  latter  part  of  1920  it  was 
nothing  unusual  for  factories  to  close  down  ar- 
bitrarily for  a  few  days  and  then  open  up  with 
offers  of  employment  at  a  lower  wage.  Although 
such  activities  were  usually  covered  up,  it  was 
rather  evident  from  the  symptoms  that  one  im- 
portant cause  of  shutdowns  was  the  desire  to  reduce 
wages  and  make  the  men  like  it.  Factories  are  will- 
ing to  have  their  plants  idle  for  a  few  days  sometimes 
if  they  can  save  a  dollar  or  two  from  each  man's 
wage  for  a  period  of  several  months  or  years. 

Some  of  the  great  woolen  mills  were  closed  down 
early  in  1920,  not  only  with  the  rather  evident  policy 
of  securing  labor  at  a  lower  wage,  but  to  curtail 
production  and  hold  up  prices. 

Are  they  justified  in  so  doing?  Perhaps  so  and 
perhaps  not.  The  Industrial  Court  proposes  to  find 
out.  It  does  not  propose  to  permit  wholesale  dis- 
location of  vital  industries  affecting  public  welfare 
without  a  hearing.  Are  such  industries  rightly 
subject  to  court  inquiry?  We  believe  they  are. 
They  have  grown  to  such  huge  proportions  and  are 
so  united  and  centralized  by  organization  that  they 
have  become  vital  factors  in  human  existence  and 
therefore  rightly  subject  to  the  police  powers  of  the 
state. 

The  Kansas  flour-mills  case  was  adjudicated 
promptly  and  without  oppressive  restraint.  The 
adjudication  had  a  wholesome  effect  on  the  general 
situation.  Employers  saw  that  they  could  not 


38    THE  PARTY  OF  THE  THIRD  PART 

discharge  labor  or  curtail  production  of  a  vital 
necessity  in  an  offhand  manner.  No  one  was  hurt, 
for  the  court  purposes  justice  and  fairness.  But  in 
the  background  there  was  the  long  arm  of  govern- 
ment and  the  potential  guardianship  of  the  lives  of 
the  people  and  the  rights  of  the  workers  in  times  of 
stress  or  emergency. 

The  first  decisions  of  the  court  in  various  instances 
have  created  a  valuable  body  of  law  which  has 
proven  in  every  case  the  potential  worth  of  the 
Industrial  Court  as  a  method  for  meeting  the  con- 
troversies which  arise  out  of  a  period  characterized 
by  a  feeling  of  peculiar  social  unrest. 


Ill 

THE    PERIOD   OF   UNREST 

intimate  family  quarrel  between  those  who 
labor  and  those  who  employ  is  the  most 

-*-  poignant  issue  in  America  to-day,  overshad- 
owing that  of  the  League  of  Nations  and  the  deep 
concerns  of  our  far-flung  international  relationships. 

This  has  grown  into  a  national  problem,  not  be- 
cause all  who  labor  are  directly  concerned  in  it,  for 
out  of  45,000,000  people  who  labor  in  the  United 
States,  less  than  5,000,000  are  members  of  the 
solidly  organized  forces  of  union  labor  belonging  to 
or  affiliated  with  the  national  Federation.  But  the 
personnel  of  the  5,000,000  contains  the  most  expert 
labor  upon  which  America  depends  for  her  essential 
industries. 

The  making  of  food,  clothing,  the  production  of 
fuel,  and  the  transportation  of  these  necessities  are 
in  the  hands  of  a  solid  minority  whose  organization 
is  builded  for  war  against  the  owners  of  the  institu- 
tions which  control  these  productions  and  which  are 
likewise  builded  for  war. 

Between  these  two  potential  machines  of  pro- 
duction is  wedged  the  public,  dependent  upon  both 


40    THE  PARTY  OF  THE  THIRD  PART 

the  worker  and  the  employer.  The  public  is  a  huge 
mass,  inert  and  protoplasmic,  having  no  power  of 
protection  save  the  good-natured  power  of  passive 
resistance.  When  this  public  is  squeezed  between 
the  opposing  and  hostile  forces  of  labor  and  capital, 
the  result  is  called  economic  pressure. 

The  remedy  proposed  by  the  President's  Industrial 
Conference  leaves  the  decision  in  the  last  resort  of  an 
industrial  controversy  to  "public  sentiment."  Since 
public  sentiment  is  the  sole  contribution  of  the  inside 
mass,  the  conference  rather  takes  the  position  by 
inference  that  economic  pressure  may  be  exerted 
until  the  public  is  ready  to  give  up  its  rights  and 
surrender  to  the  pressure. 

The  Federal  government,  which  has  jealously 
safeguarded  every  right  of  the  citizen  and  pro- 
tected him  against  every  other  danger,  has  admitted 
in  the  report  of  the  second  Industrial  Conference 
that  the  best  it  can  do  is  to  leave  the  public,  in  this 
dire  emergency,  to  its  own  devices. 

We  all  of  us  have  a  consciousness  that  the  in- 
dustrial controversies  of  the  past  two  years  have  had 
a  devastating  effect  upon  us,  but  it  is  doubtful  if  the 
general  public  realizes  how  much  the  industrial 
quarrel  has  cost. 

The  year  1919  was  the  greatest  strike  year  in  the 
history  of  the  United  States  and  the  present  year 
apparently  is  maintaining  the  extravagant  record. 
During  the  twelve  months  following  the  armistice 
there  were  more  than  three  times  as  many  strikes 


THE  PERIOD  OF  UNREST  41 

as  in  the  same  period  the  last  year  previous  to  the 
war.  In  August,  1919,  there  were  356  strikes,  as 
compared  with  only  76  in  August,  1915. 

The  American  citizen  has  been  a  long  time  in 
realizing  the  effect  of  strikes  upon  himself  personally. 
If  he  were  not  directly  involved  he  gained  the  idea 
that  the  strike  did  not  concern  him.  He  has  not 
realized  that  an  epidemic  of  strikes  such  as  this 
country  has  been  experiencing  either  directly  or  in- 
directly touches  every  one  of  us  in  that  most  sensitive 
spot — our  pockets,  because  it  influences  the  cost  of 
living  and  the  movement  of  business  for  the  whole 
people. 

In  September,  1919,  Mr.  W.  T.  G.  Harding,  gov- 
ernor of  the  Federal  Reserve  Board,  made  this 
statement :  "  If  the  world  would  declare  an  industrial 
truce  for  six  months  it  would  do  more  to  bring  down 
high  prices  than  workers  could  ever  accomplish  by 
strikes  and  agitations." 

According  to  the  best  statistics  available,  the 
number  of  workers  who  struck  in  1919  was  close  to 
two  millions.  In  addition,  there  were  as  many 
threatened  strikes  as  actual  ones,  and  although  these 
were  settled  without  a  walkout,  they  caused  a 
definite  loss  in  production.  The  loss,  according  to 
the  statistics  which  Roger  W.  Babson  gives  us,  was 
appalling.  He  places  it  at  billions  of  dollars  for 
the  year  1919  alone.  Of  course,  this  loss  is  not 
confined  to  the  strikers  and  their  employers.  Every- 
one must  stand  his  share.  It  is  estimated  by  Wash- 


42    THE  PARTY  OF  THE  THIRD  PART 

ington  statisticians  that  the  cost  of  the  strikes  to  labor 
in  loss  of  wages  alone,  in  1919,  was  more  than 
$725,000,000. 

Everybody  lost  something.  Instance  the  harbor 
strike  in  New  York  City  in  October.  In  the  third 
week  of  this  strike  the  shipping  authorities  estimated 
that  it  was  costing  $1,500,000  a  day,  and  this  was 
aside  from  the  expense  of  maintenance  and  interfer- 
ence with  other  branches  of  business.  Building 
materials  were  delayed,  with  the  result  that  con- 
tractors lost  money,  workmen  were  idle,  and  the 
construction  of  new  houses,  stores,  and  offices — the 
only  solution  of  the  high-rent  problem — was  held 
back.  This  is  only  one  instance  of  the  ramification. 

The  strike  spirit  permeates  like  a  poison  and  the 
idea  becomes  prevalent  that  a  man  may  violate  the 
law  in  the  name  of  a  strike.  The  poison  even  affects 
the  morale  of  those  who  do  not  strike  and  of  those 
who  return  to  work  after  the  strike  is  over.  It  seems 
to  poison  the  entire  commercial  system.  It  is  true 
that  increases  in  wage  have  been  followed  by  in- 
creases in  the  cost  of  living,  and  it  is  equally  true  that 
practically  every  increase  in  wage  has  been  followed 
by  a  decrease  in  production.  There  seems  to  have 
been  an  alarming  decadence  of  the  philosophy  that 
there  must  be  an  honest  day's  work  for  an  honest 
day's  pay. 

It  is  probably  true  that  the  total  cost  in  wages, 
in  production,  and  in  added  prices,  which  have  come 
to  us  through  the  demoralization  of  production  and 


THE  PERIOD  OF  UNREST  43 

distribution,  would  equal  last  year  the  billions  we 
have  expended  in  the  war,  if  a  competent  comparison 
might  be  had  of  present  conditions  with  the  pre- 
war situation  in  all  lines. 

As  a  result  of  the  widespread  realization  of  the 
condition  the  subject  of  a  remedy  is  being  more 
intelligently  discussed  in  America  to-day  than  ever 
before.  We  have  come  now  to  realize  that  the  term 
"industrial  war"  means  exactly  what  it  says.  There 
is  going  on  in  the  nation  to-day  a  conscious  effort 
to  establish  a  class  control  over  production.  On  an 
occasion  last  year  the  president  of  the  American 
Federation  of  Labor  appeared  before  a  committee 
of  Congress,  declaring  that  if  any  limitation  was 
placed  upon  the  right  to  strike  it  would  not  be 
obeyed.  That  defiant  declaration  startled  many 
members  of  Congress  and  millions  of  American 
people  into  the  realization  that  an  issue  was  being 
made  between  a  minority  and  the  government  and 
the  gentleman  who  represented  the  minority  was 
presenting  what  he  regarded  as  an  unanswerable 
argument  for  the  necessity  of  government  confining 
its  restrictions  to  the  limits  of  safety. 

We  have  suddenly  learned  that  modern  civiliza- 
tion makes  a  hundred  million  people  interdependent 
upon  one  another.  The  power  of  a  minority,  which 
has  secured  a  monopoly  in  the  production  of  a 
needed  commodity,  is  the  power  to  menace  the 
public  and  supersede  government  itself.  It  will  be 
a  mistake  for  the  nation  to  continue  the  discussion  of 


44    THE  PARTY  OF  THE  THIRD  PART 

this  question  in  terms  merely  of  "employer"  and 
"employee."  It  is  a  case  of  society  protecting  its 
own  life  under  the  conditions  by  which  it  must 
live. 

The  industrial  civilization  that  has  produced  a 
gigantic  urban  population  and  has  congregated  great 
groups  into  separate  districts  has  made  these  groups 
utterly  dependent  for  their  continued  existence  upon 
uninterrupted  communication,  production,  and  trans- 
portation. The  solid  minority,  which  is  using  its 
power  to  close  down  essential  industries,  has  as- 
sumed an  importance  out  of  proportion  to  its  nu- 
merical strength.  The  fourteen  million  farmers  of 
the  nation  should  be  relatively,  at  least,  of  equal 
importance  with  the  five  million  members  of  or- 
ganized labor,  but  they  have  not  organized  for  the 
purpose  of  controlling  the  production  of  their  fields 
and  pastures,  and  hence  they  present  no  such 
problem. 

The  two  camps  of  employing  capital  and  organized 
labor  confront  each  other  and  demand  the  right  to 
carry  on  the  battle  without  regard  to  its  effect  upon 
the  public.  It  should  be  pointed  out,  of  course, 
that  there  are  many  great  industries  which  have 
formed  with  their  employees  a  system  of  co-operation 
and  shop  government  that  presents  a  hopeful  sign, 
but  in  the  essential  industries,  where  economic 
pressure  may  be  applied  with  ghastly  results,  the 
quarrel  has  reached  an  intensity  which  calls  upon 
us  for  the  application  of  a  remedy  which  shall 


THE  PERIOD  OF  UNREST  45 

be  sufficiently  impartial  to  deal  justly  and  finally 
with  the  rights  of  labor,  the  rights  of  the  em- 
ployers, and  the  rights  of  the  public.  It  is  mani- 
fest, of  course,  that  such  a  remedy  could  be  applied 
only  by  the  broad  and  impartial  power  of  righteous 
government. 

If  moral  principles  inherent  in  American  institu- 
tions cannot  be  extended  to  meet  this  emergency, 
then  American  institutions  have  failed,  because  the 
issue  here  is  the  issue  of  government  and  its  ability 
to  meet  the  challenge  of  any  class  which  has  decided 
to  live  above  the  law. 

The  Kansas  legislature,  which  has  attempted  to 
supply  this  remedy,  realized  during  that  critical 
period  that  government  was  the  only  source  of 
protection.  The  efforts  of  the  succeeding  chapters 
of  this  book  will  be  to  point  out  the  principles  of  our 
law,  the  background  of  events  and  public  sentiment 
which  made  possible  its  adoption  by  an  almost 
unanimous  vote,  and  the  just  and  satisfactory 
manner  in  which  the  Court  of  Industrial  Rela- 
tions has  functioned  during  the  brief  period  of  its 
operation. 

We  do  not  contend  that  the  law  has  been  free 
from  violation,  that  its  operation  has  been  perfect, 
or  that  it  has  solved  entirely  the  labor  controversy, 
but  we  do  believe  it  has  functioned  as  well  as  any 
important  law  of  such  broad  powers  could  function 
in  its  early  periods.  It  is  growing  constantly  in  the 
favor  of  both  laborers  and  employers  and  of  the 


46    THE  PARTY  OF  THE  THIRD  PART 

public,  and  there  is  increasing  expectation  that  it 
will  prove  as  completely  workable  as  other  great 
laws  on  our  statute  books. 

It  has  pointed  out  both  to  capital  and  to  labor 
the  fact  that  it  is  possible  for  government  to  set  up 
standards  of  justice  and  maintain  them.  There  is 
nothing  which  has  the  teaching  power  of  law,  and 
the  presence  of  the  Kansas  court  is  rapidly  con- 
vincing laboring  men  and  employers  that  there  is  a 
better  way  for  the  solution  of  their  difficulties  than 
industrial  war.  The  presence  of  the  court,  offering 
its  remedies,  has  reduced  controversies.  Men  repre- 
senting both  sides,  understanding  their  rights  in 
court,  get  together  more  easily  because  the  law  has 
narrowed  the  issue.  The  state  has  declared  that  the 
laboring  man  has  certain  rights  which  guarantee  to 
him  fair  wages,  decent  housing  conditions,  safe  work- 
ing conditions,  and  an  opportunity  to  accumulate  by 
reasonable  frugality  enough  to  enjoy  the  blessings 
of  civilization.  Therefore,  he  is  safeguarded  by  this 
standard  and  may  depend  upon  the  court  for  the 
adjudication  of  the  details.  The  law  is  equally  plain 
in  its  provisions  for  safeguarding  the  rights  of  capital, 
and  both  parties  to  the  controversy  are  confronted 
with  the  unalterable  fact  that  the  general  public 
shall  not  be  made  at  any  time  the  object  of  economic 
pressure. 

The  Kansas  tribunal  is  not  a  flash  in  the  pan.  It 
is  not  the  hastily  considered  product  of  a  tem- 
porary wave  of  passion  or  prejudice.  Many  of  its 


THE  PERIOD  OF  UNREST  47 

moving  principles  have,  for  some  time  past,  been 
employed  in  individual  instances.  The  Kansas  coal 
strike  in  1919  served  only  to  dramatize  the 
situation  which  had  existed  for  decades.  Special 
care  was  taken  not  to  permit  the  fact  of  the 
strike  to  have  any  undue  or  temper-tinged  effect 
upon  the  legislation. 


IV 

THE    KANSAS   COAL   STRIKE 

THERE  are  several  industrial  districts  in 
Kansas,  but  in  only  one  of  them  has  there 
been  an  unusual  degree  of  industrial  strife. 
The  lead  and  zinc  districts  around  Galena  and 
Joplin,  the  packing-house  districts  of  Kansas  City, 
Kansas,  the  milling  centers,  and  the  railway  centers, 
have  been  little  affected  by  labor  conflict.  Although 
some  of  these  districts  are  heavily  populated,  the 
employers  and  employees  have  been  carrying  on  the 
operations  in  a  spirit  of  friendly  co-operation  which 
has  produced  ordinarily  satisfactory  results. 

The  coal-mining  district  of  the  state,  in  which 
some  fifteen  thousand  miners  are  engaged,  has 
offered  a  sharp  contrast  to  the  situation  in  the  other 
districts.  Not  only  has  it  been  a  looper-cent- 
organized  industry  so  far  as  union  labor  is  con- 
cerned, but  it  has  been  under  the  ultraradical 
leadership  of  a  district  president,  Alexander  Howat. 
The  quarrel  between  the  operators  and  Howat  has 
been  continuous,  and  a  feeling  of  intense  hostility 
has  been  engendered.  A  very  great  majority  of  the 


THE  KANSAS  COAL  STRIKE  49 

miners  are  foreigners  and  followed  the  leadership 
of  their  radical  officers  blindly. 

For  forty-five  months,  ending  December  31,  1919, 
there  were  705  separate  strikes  at  individual  mines 
in  the  state  of  Kansas,  and  the  amount  of  dollars 
and  cents  gained  by  the  miners  was  $852.83.  The 
total  loss  to  the  miners  in  wages,  figured  at  the  scale 
rate  per  day  per  man  on  account  of  these  strikes, 
was  $3,866,780.34.  Of  the  $852.83  reclaimed  up  to 
December  3ist,  $765  was  simply  an  adjustment  in 
the  price  of  fuses  and  dynamite,  which  was  being 
adjusted  when  the  strike  was  called,  so  that  the  only 
actual  benefit  of  these  strikes,  which  cost  nearly 
$4,000,000  in  wages,  was  $87.83. 

In  addition  to  this  burden,  the  miners  had  paid 
out  of  their  slender  purses  an  enormous  sum  for 
strike  benefits  and  to  maintain  the  warlike  organiza- 
tion with  which  they  carried  on  an  active  conflict 
with  the  operators.  In  1919  alone  it  cost  these 
miners,  in  the  form  of  dues  and  assessments,  $157,000 
to  maintain  the  organization. 

The  people  of  the  state  were  always  consciouc  of 
this  conflict  and  the  district  had  come  to  be  known 
as  the  "bad  lands."  In  Pittsburg,  the  center  of 
this  district,  civilization  held  a  peculiar  expression. 
Strikes,  lockouts,  boycotts  became  humdrum,  and 
both  business  and  industrial  life  contained  a  feudal- 
ism which  had  existed  so  long  that  it  was  regarded 
as  commonplace  and  unavoidable.  The  people, 
who  were  not  directly  concerned  in  it,  viewed  it  with 


So    THE  PARTY  OF  THE  THIRD  PART 

good-natured  regret  and  sometimes  they  talked 
about  remedies  in  a  purely  academic  fashion. 

There  was  enough  coal.  The  operators,  who 
always  outplayed  Howat,  seemed  to  make  sufficient 
profits.  The  public  paid  the  bills  to  meet  the 
expenses  of  the  private  war,  and  the  first  sufferers 
were,  of  course,  the  miners,  who  became  merely  the 
helpless  pawns  in  the  game. 

Unionization  was  compulsory  and  the  discipline 
applied  to  any  miner  who  did  not  obey  the  orders  of 
his  officials  was  severe  and  unrelenting.  It  had  been 
many  years  since  a  pound  of  coal  had  been  pro- 
duced in  that  district  except  under  the  elaborate 
regulations  of  the  union  organization,  and  the  con- 
stant reminder  of  the  district  president  was  that 
not  a  pound  of  coal  would  ever  be  produced  except 
by  unionized  organization. 

It  was  natural  that,  with  this  spirit  of  continued 
hostility  existing,  the  housing  and  living  conditions 
were  neglected.  The  leaders  of  both  sides  confined 
their  attention  to  the  daily  quarrel,  and  the  condi- 
tions which  exist  through  co-operation  in  other  indus- 
tries of  the  state  were  wholly  lacking  in  the  mining 
district.  The  state  had  ameliorated  the  hard  condi- 
tions somewhat  by  establishing  and  maintaining 
at  its  own  expense  rescue  stations,  and  had  passed 
severe  laws  relating  to  the  safety  of  the  miners  in 
their  working  conditions;  but  on  the  surface  it  was, 
while  being  the  most  highly  organized  district  of 
the  state,  the  most  unsatisfactory  and  wasteful, 


THE  KANSAS  COAL  STRIKE  51 

not  only  of  human  life,  but  in  respect  to  the  produc- 
tivity of  the  commodity.  It  had  been  thus  for  a 
long  time  and  people  naturally  concluded  it  would 
have  to  remain  so  till  the  end  of  time. 

Then  the  general  strike  was  ordered  during  the 
winter  of  1919-20.  The  crisis  of  this  strike  threat- 
ened the  public  almost  immediately.  The  Kansas 
problem  was  very  intimately  a  part  of  the  national 
problem.  Within  two  weeks  schoolhouses  cloced. 
Industries  shut  down.  Stores  shortened  their  busi- 
ness hours,  and  soon  after  this  there  was  suffering  in 
homes  and  in  hospitals  through  lack  of  fuel. 

The  supreme  court  was  asked  to  turn  over  the 
mines  of  the  state  to  a  receivership  to  relieve  the 
public  from  freezing.  The  supreme  court  granted 
the  petition  and  the  property  of  the  mines  was 
placed  under  the  charge  of  the  state,  for  the  purpose 
of  meeting  the  public  emergency  and  protecting  the 
public  health  and  safety. 

After  the  mines  had  been  acquired  by  the  state  I 
spent  a  week  holding  public  meetings  among  the 
miners,  urging  them  to  go  back  to  the  mines  and 
work  under  state  operation  pending  the  settlement 
of  the  controversy  which  was  then  being  carried  on 
by  miners'  officials  and  operators  at  Washington. 

The  assurance  was  given  that  whatever  benefits 
in  the  way  of  wage  increase  should  finally  be  agreed 
upon  at  Washington  would  be  paid  to  the  miners 
from  the  date  of  their  beginning.  The  further  as- 
surance was  given  that  in  case  the  miners'  officials 


52    THE  PARTY  OF  THE  THIRD  PART 

and  the  operators  should  not  reach  a  satisfactory 
agreement  by  the  ist  of  January — it  was  then  the 
middle  of  November — the  state  would  at  that  time 
take  up  the  matter  and  agree  upon  a  satisfactory 
wage,  and  the  wage  thus  agreed  upon  would  be  made 
retroactive  to  cover  the  entire  period  of  work  per- 
formed under  the  state's  direction. 

I  was  warned  that  an  effort  to  hold  meetings  would 
result  in  riots  and  disturbances,  that  the  miners 
would  resent  the  interference  of  the  state,  and  that 
the  effort  would  lead  to  disorder.  This  statement 
was  given  out  by  the  miners'  officials.  Naturally 
enough,  the  operators  also  objected  to  the  state's 
interference.  In  justice  to  the  miners  themselves, 
it  should  be  said  that  there  was  not  a  single  instance 
of  disorder.  They  crowded  the  meetings  and  lis- 
tened generally  with  sympathetic  attention. 

I  believe  it  safe  to  say  that  at  least  40  per  cent  of 
the  miners,  representing  generally  the  conservative 
American-born  element,  wanted  to  go  back  to  work. 
They  were  disturbed  by  the  thought  that  they  were 
bringing  upon  a  helpless  public,  which  had  no  in- 
terest in  their  quarrel,  a  very  grim,  a  very  real  dan- 
ger, and  that  the  deaths  which  would  ensue  as  the 
result  of  the  fuel  famine  would  be  charged  directly 
to  them. 

In  every  meeting  miners  came  to  me  individually 
and  said  they  would  like  to  accept  the  proposition, 
but  they  did  not  dare  to  return  to  work.  It  would 
mean  that  their  cards  would  be  taken  away  from 


THE  KANSAS  COAL  STRIKE  53 

them.  They  would  be  deprived  of  future  oppor- 
tunity to  work.  Their  families  would  be  persecuted 
an*!  even  their  children  made  to  suffer  the  odium 
which  attaches  to  the  word  "scab/* 

"If  you  can  get  Howat  to  order  us  back  to  work 
we  will  be  glad  to  go,"  was  an  almost  unanimous 
expression. 

The  growing  sentiment  of  the  miners  in  favor  of 
the  state's  proposal  became  so  apparent  that  Howat 
sent  daily  messages  from  Washington,  where  he  was 
in  conference  with  the  leaders,  urging  the  Kansas 
miners  not  to  desert  him.  This  he  did  in  plain 
violation  of  the  Federal  injunction  which  Judge 
Anderson  had  issued  against  the  miners'  officials. 

At  the  end  of  a  week,  when  it  became  apparent 
that  the  miners  would  not  go  to  work  for  the  state, 
a  call  was  issued  for  volunteers.  Within  less  than 
two  days'  time  more  than  eleven  thousand  Kansans 
volunteered  for  service  in  the  mines.  Many  of  them 
had  never  seen  a  coal  mine,  but  the  inconvenience 
and  the  dangers  of  the  fuel  famine  were  already  so 
apparent  that  they  volunteered,  not  because  they 
were  interested  in  any  degree  in  the  fight  between 
the  operators  and  the  miners,  but  because  they 
wished  to  save  the  public. 

Many  volunteers  also  offered  their  names  from 
Oklahoma,  Missouri,  and  Nebraska.  Governor  Mc- 
Kelvey  of  Nebraska  sent  me  a  telegram  offering 
fifteen  hundred  young  men  for  service  in  the  mines 
if  they  were  needed,  and  calling  attention  to  the  fact 


54    THE  PARTY  OF  THE  THIRD  PART 

that  Nebraska,  which  had  no  mines  in  the  state, 
had  reached  a  point  of  suffering  in  the  fuel  famine. 

We  began  the  operations  by  manning  the  strip 
mines  of  the  state  and  chose  for  this  purpose  a 
sufficient  number  of  young  men  to  operate  these 
mines.  A  very  large  percentage  of  these  men  were 
formerly  in  the  service  of  the  army,  many  of  whom 
were  from  the  schools  and  colleges  of  the  state. 
They  were  brought  to  Pittsburg  in  special  trains. 
A  regiment  of  the  Kansas  National  Guard  was  also 
brought  along  to  do  guard  duty  at  the  various  mines, 
and  General  Wood  of  the  Regular  Army  sent  six 
hundred  troops  to  form  an  encampment  there,  but 
to  take  no  part  in  the  activities  unless  it  should 
become  necessary  to  place  the  district  under  martial 
law.  Fortunately,  none  of  these  troops  was  needed. 

The  miners  showed  very  little  resentment.  They 
had  been  told  the  week  before  that  this  would  happen 
unless  they  went  back  to  work.  They  had  been 
given  the  first  chance  and  they  accepted  the  situa- 
tion without  resistance.  I  am  inclined  to  think 
that  if  the  soldiers  had  not  been  there  we  might 
have  needed  them  on  some  occasions. 

When  the  special  trains  bringing  in  our  volunteer 
miners  arrived  they  were  met  at  the  stations  by 
large  groups  of  miners  who  had  come,  I  dare  say,  to 
give  them  the  usual  reception  which  is  accorded 
strike  breakers  by  union  miners.  When  these  young 
Kansas  volunteers,  most  of  them  dressed  in  their 
army  uniforms,  detrained,  they  were  received  in 


THE  KANSAS  COAL  STRIKE  55 

utter  silence.  The  miners  had  never  seen  any 
strike  breakers  like  these.  These  young  men,  keen- 
eyed,  stalwart,  kindly-faced,  were  so  obviously  what 
they  were — a  lot  of  whole-hearted,  patriotic  young 
men,  engaged  on  a  mission  to  relieve  the  famine, 
that  even  the  miners  saw  how  incongruous  it  would 
be  to  receive  them  as  strike  breakers. 

I  remember  an  incident  which  is  rather  revealing. 
A  striking  miner,  as  these  volunteers  marched  up 
the  main  street  of  Pittsburg,  approached  one  of  the 
volunteers  and  began  telling  him  how  difficult  it 
would  be  to  produce  any  coal  under  the  present 
conditions.  He  reminded  the  volunteer  that  the 
mines  had  been  shut  down  for  several  weeks,  the 
pits  were  full  of  water,  the  machinery  out  of  repair. 

"Why,"  said  he,  "even  we  could  not  produce  any 
coal  this  sort  of  weather." 

The  young  volunteer  listened  to  him  for  a  few 
moments  and  then  said,  "Did  you  ever  see  any 
trenches  in  France?" 

It  was  bad  weather.  The  thermometer  was  at 
zero  and  the  Kansas  zephyr  was  functioning.  It 
was  bad  weather  for  coal  mining.  It  was  worse 
weather  to  be  without  coal. 

The  volunteer  miners  went  to  the  mines  that  night, 
and  while  the  National  Guard  was  throwing  out  the 
guard  lines  these  young  men  began  to  pump  the 
mines  and  repair  the  machinery.  They  worked  at 
an  occupation  altogether  new  to  them  in  the  bit- 
terest weather,  living  in  tents.  Many  of  them  had 


S6    THE  PARTY  OF  THE  THIRD  PART 

come  from  indoor  occupations  and  were  not  ac- 
customed to  hardships,  but  they  overcame  obstacles 
that  seemed  insuperable  to  experienced  miners  and 
in  ten  days  they  produced  enough  coal  to  relieve  the 
emergenicies  in  more  than  two  hundred  Kansas 
communities.  By  the  time  the  regular  miners  came 
back  to  work  every  Kansas  community  that  had 
called  for  fuel  had  been  tided  over  and  the  effect 
of  the  strike  had  been  broken. 

The  operation  of  the  mines  under  the  state,  even 
with  unskilled  labor,  was  not  disastrous  in  a  financial 
way.  By  the  time  the  receivership  was  discharged 
a  sufficient  amount  of  coal  had  been  produced 
practically  to  meet  all  of  the  expenses  of  the 
operation. 

When  there  was  added  to  this  a  sum  due  the  state 
from  the  operators  for  the  work  it  had  accomplished 
in  placing  the  mines  in  better  condition,  all  the 
expenses  had  been  met  except  that  incident  to  the 
regiment  of  National  Guard — about  $70,000.  This, 
however,  was  not  an  expense  of  mining.  It  was  an 
expense  of  government. 

The  expenses  of  the  state  operation  were  greater 
than  mining  by  experienced  miners,  but  this  added 
cost  was  taken  care  of  by  the  fact  that  we  saved  the 
middlemen's  profit  in  marketing  the  coal.  The  cars 
were  delivered  directly  from  the  mines  to  the  com- 
munities and  sold  at  the  fuel  price  established  by 
Doctor  Garfield.  The  mine  operators  were  paid  the 
customary  royalty  on  their  coal.  The  only  loss  was 


THE  KANSAS  COAL  STRIKE  57 

to  the  retail  dealers,  but  since  they  were  not  in  the 
coal  business  during  the  strike  it  really  did  not  cost 
them  anything. 

The  magnificent  young  men  who  came  to  the 
mines  and  worked  as  volunteers  were  paid  $5.70 
per  day  and  given  their  transportation  from  their 
homes  to  the  mines.  I  have  never  seen  even  in  the 
war  a  finer  spirit  of  patriotism  than  they  manifested. 
They  never  inquired  what  the  wages  were  to  be  or 
what  the  hours  were.  They  worked  from  daylight 
till  dark,  lived  in  zero  weather  in  tents,  and  went 
back  to  their  schools  and  colleges  and  other  occu- 
pations at  the  end  of  their  service,  with  the  finest 
spirit  of  enthusiasm  which  grew  out  of  the  realiza- 
tion that  they  had  accomplished  a  valuable  purpose. 
It  has  always  seemed  to  me  as  though  Providence 
must  have  sympathized  with  the  effort,  because  in 
all  the  several  hundreds  of  young  men  we  did  not 
have  a  single  death  as  the  result  of  sickness  or 
accident. 

But  the  real  benefit  of  the  operation,  great  as  was 
the  value  of  the  coal,  was  in  the  fundamental  realiza- 
tion which  came  to  all  our  people  that  the  govern- 
ment has  the  right  to  protect  the  public  against  the 
dangers  of  a  strike  in  an  essential  industry.  The 
public  was  ready  for  a  remedy  and  most  of  the 
miners  were  sick  of  a  condition  which  deprived  them, 
in  the  dead  of  winter,  of  the  wages  which  they  needed 
for  themselves  and  their  families. 

The  instances  which  reveal  the  utter  lack  of  con- 


S8    THE  PARTY  OF  THE  THIRD  PART 

sideration  on  the  part  of  the  union  officials  for  the 
real  welfare  of  the  miners  had  so  multiplied  that  we 
all  realized  the  impossibility  of  continuing  an  in- 
dustrial civilization  so  absurdly  out  of  tune  as  the 
one  in  the  Kansas  mining  district. 

A  typical  instance  of  the  brutality  in  the  situation 
related  to  the  depriving  of  the  local  hospital  of  coal 
by  order  of  the  miners'  officials.  This  was  an  in- 
stitution builded  by  public  subscription  out  of  the 
pride  of  Pittsburg.  It  was  full  of  patients,  half  of 
whom  were  union  miners.  Within  three  or  four  days 
after  I  had  moved  my  office  to  Pittsburg  two 
miners  came  to  me  to  tell  me  that  the  hospital  was 
out  of  fuel.  They  said  that  for  several  weeks  they 
had  been  supplying  the  hospital  from  a  small  shaft 
which  these  two  miners  owned.  That  morning  they 
had  been  warned  by  the  miners'  officials  not  to  pro- 
duce any  more  coal  for  the  hospital  or  for  anyone 
else.  They  told  me  that  unless  the  state  could 
supply  coal  to  the  hospital  it  would  be  impossible 
to  keep  up  the  temperature,  and  that  death  was 
bound  to  ensue  as  the  result  of  the  fuel  famine  by  the 
following  day. 

It  seems  incredible,  as  I  look  back  upon  it  now, 
that  there,  in  the  very  heart  of  the  coal-mining 
district,  with  fifteen  thousand  miners  idle,  several 
hundred  sick  people,  half  of  them  union  miners, 
should  be  threatened  with  death  through  lack  of 
that  commodity  which  existed  in  such  abundance  and 
needed  only  the  work  of  two  men  to  keep  it  going. 


THE  KANSAS  COAL  STRIKE  59 

When  I  at  first  refused  to  supply  the  coal  on  the 
ground  that  the  miners'  officials  should  make  an 
exception  of  the  hospital  and  continue  to  produce 
the  coal  for  it  themselves,  I  was  made  to  realize 
the  ghastly  truth  that  unless  I  provided  the  coal 
for  that  hospital  it  must  go  without  fuel;  so  of 
course  the  coal  was  provided,  and  for  the  ensuing 
month  several  hundred  union  miners  were  kept  alive 
by  the  use  of  that  commodity  they  had  been  taught 
to  despise — "scab  coal." 

Here  is  another  instance:  one  day  a  discouraged 
wreck  of  a  woman  came  in  from  Weir  City  to  see  me. 
She  told  me  she  had  spent  all  the  money  she  had  to 
come  in  for  the  purpose  of  telling  me  her  troubles. 
She  explained  that  her  husband  had  been  on  a 
strike  for  six  months,  a  strike  called  in  the  mines  of 
the  Central  Coal  and  Coke  Company.  Her  husband 
didn't  even  know  what  the  strike  was  about.  He 
had  asked  for  a  statement  of  the  grievance,  but  had 
never  received  it,  and  for  six  months  she  and  her 
husband,  with  a  family  of  several  children,  had 
existed  upon  the  strike  benefits  doled  out  by  the 
miners'  treasury — a  sum  which  never  exceeded  nine 
dollars  a  week. 

She  said  they  were  in  a  desperate  state  and  when 
our  volunteer  miners  arrived  at  a  mine  not  far  from 
her  home  she  went  down  to  see  if  she  could  not 
procure  some  washing  and  some  mending  from  these 
volunteers.  She  had  brought  back  some  work 
which  would  give  her  the  opportunity  of  earning 


60    THE  PARTY  OF  THE  THIRD  PART 

several  dollars  for  the  needy  household,  but  on  the 
night  before  she  came  to  see  me  a  committee  from 
her  husband's  own  union  had  called  upon  her  and 
forbidden  her  to  do  the  work  and  had  ordered  her 
not  to  go  back  to  the  mine. 

I  suggested  that  she  go  ahead  and  do  the  work, 
promising  that  she  should  have  whatever  protection 
she  needed.  She  replied,  "I  am  not  afraid  that 
they  would  harm  me  while  the  state  is  operating 
these  mines,  but  when  you  go  away,  some  of  them 
would  burn  my  house." 

This  is  the  spirit  of  brotherhood  evidenced  in  many 
instances. 

A  man  by  the  name  of  Guffey,  an  American-born 
miner,  decided  not  to  go  out,  but  stayed  on  the  work, 
joining  in  with  the  volunteers  who  were  running  the 
state  operations.  His  union  suspended  him  for 
ninety-nine  years  and  then  threatened  his  landlady 
and  his  groceryman  with  a  boycott  in  case  they  did 
not  put  Guffey  on  the  blacklist. 

Surely  the  state  can  foster  a  better  spirit  of  brother- 
hood than  this. 

One  of  the  interesting  results  of  the  coal-mining 
operation  was  in  the  reaction  of  public  sentiment  in 
Pittsburg.  When  the  state  began  to  operate,  mer- 
chants, bankers,  and  business  men  went  to  consider- 
able pains  to  exhibit  to  the  miners  their  lack  of 
interest  in  the  effort.  They  feared  that  they  would 
be  boycotted  by  the  miners  if  they  exhibited  any 
sympathy  with  the  state,  and  in  refraining  from  an 


THE  KANSAS  COAL  STRIKE  61 

attitude  that  might  be  interpreted  as  sympathetic 
they  leaned  backward,  and  in  many  instances  their 
attitude  could  be  interpreted  as  sympathetic  to  the 
strike. 

Within  ten  days  from  the  time  we  began  to  pro- 
duce coal,  the  sentiment  changed.  A  meeting  of  the 
Chamber  of  Commerce  was  called  which  indorsed 
the  action  of  the  state,  and  business  men  began  to 
talk  about  a  new  Declaration  of  Independence  for 
Pittsburg. 


THE   MAKING   OF  THE   COURT 

ANSAS  is  an  agricultural  state." 

This  is  one  of  the  stock  objections  used 
against  the  Industrial  Relations  Court 
and  it  is  an  argument  that,  when  examined  closely,  is 
found  to  be  empty.  The  very  fact  that  Kansas  is  an 
agricultural  state  served  to  make  the  issue  more  vivid 
when  it  appeared.  A  green  house  contrasts  with  a 
background  of  bright  sky  more  than  it  contrasts 
with  a  background  of  forest,  but  the  house  is  green 
in  either  case. 

It  has  been  said  that  the  making  of  a  law  is  to  be 
judged  in  connection  with  the  attendant  circum- 
stances. This  is  true  in  a  degree,  but  it  should  be 
remembered  that  there  was  not  a  single  element  in 
the  Kansas  situation  that  does  not  apply  with  equal 
force  in  every  other  state  in  the  Union. 

Possibly  in  the  centers  of  business  and  industry 
the  factor  of  economic  prestige  and  political  solidar- 
ity, whether  of  labor  or  capital,  has  become  so  much 
a  part  of  the  daily  life  that  it  has  imperceptibly 
drawn  out  of  that  life  a  measure  of  democratic  im- 
pulse. Possibly  people  have  become  less  sensitive 


THE  MAKING  OF  THE  COURT         63 

in  reaction  to  the  whiplash  of  economic  masters, 
taking  it  as  a  matter  of  course  and  not  realizing  what 
is  taking  place.  This  was  illustrated  even  in  Kansas 
when  the  business  men  in  the  coal-mining  towns 
accepted  the  strike  atmosphere  as  almost  a  normal 
thing. 

When  the  Subway  fails  to  operate  for  any  reason 
the  average  New  York  citizen  takes  on  a  resigned 
look,  shrugs  his  shoulders,  and  does  the  best  he  can. 
If  the  telephone  service  is  bad,  or  if  there  is  a  milk 
strike,  or  if  a  shipment  of  goods  is  held  up  by  a  rail- 
way dispute,  the  average  man  in  the  large  city  feels 
like  an  atom  in  a  whirlwind,  and  takes  things  for 
granted. 

In  the  back  of  his  head,  however,  there  is  a  sub- 
conscious impulse  that  rebels,  and  he  feels  in  a  sort 
of  a  disturbed  way  that  things  are  not  going  just 
right.  He  is  under  the  economic  restraints  that  have 
been  piled  and  pyramided  upon  him  with  no  legal 
or  moral  warrant. 

In  Kansas  the  1919  coal  strike  was  exactly  like 
the  1919  coal  strike  in  other  states  so  far  as  essentials 
were  concerned.  Alexander  Howat,  the  president 
of  District  No.  14  of  the  United  Mine  Workers,  was 
more  autocratic,  headstrong,  and  radical  than  many 
of  the  other  district  presidents,  but  he  was  acting  in 
a  perfectly  regular  manner  as  far  as  union  tactics 
were  concerned.  Other  men  in  Illinois  and  Pennsyl- 
vania were  acting  like  he  did. 

The  people  of  Kansas  breathed  the  same  kind  of 


64    THE  PARTY  OF  THE  THIRD  PART 

air,  ate  the  same  kind  of  food,  and  talked  the  same 
language  as  the  people  of  Philadelphia  or  St.  Louis. 
They  needed  the  same  kind  of  fuel  to  keep  them 
warm.  They  needed  that  fuel  whether  they  were 
farmers  or  plumbers  or  garment  makers  or  stock 
brokers.  The  labor-union  men  needed  the  coal  the 
same  as  the  farmers. 

The  issue  was  very  simple  and  clear  cut,  and  it 
was  precisely  the  same  issue  that  existed  in  all  parts 
of  the  country  affected  by  the  coal  strike.  That  issue 
was: 

"  When  there  is  a  dispute  in  a  vital  industry  and 
suffering  and  death  is  threatened,  is  the  public  wel- 
fare more  important  than  the  private  quarrel  between 
the  employer  and  the  employees?" 

The  same  question  existed  in  Pennsylvania.  It 
existed  in  the  Chicago  milk  strike,  when  babies  died 
from  the  lack  of  nourishment  because  of  that  strike. 
It  existed  in  New  York  when  the  freight  handlers 
refused  to  haul  fish  that  were  caught  by  nonunion 
men  or  handle  other  foodstuffs  originating  under 
the  labor  of  nonunion  men. 

The  uninterrupted  flow  of  necessary  commodities 
at  reasonable  prices  is  a  thing  that  has  become  in- 
finitely more  important  since  specialization  and  or- 
ganization have  become  such  dominant  factors.  The 
corner  in  wheat  was  a  crime  against  the  public.  The 
juggling  of  the  sugar  price  was  a  crime  against  the 
public.  These  things  all  affect  the  man  in  Boston  or 
New  Orleans  or  San  Francisco  or  Minneapolis  pre- 


THE  MAKING  OF  THE  COURT         65 

cisely  as  they  affect  the  farmer  on  the  plains  of 
Kansas. 

And  so  the  objection  that  "Kansas  is  an  agricul- 
tural state"  is  a  provincial  argument,  indicating  a 
lack  of  comprehension  of  the  fundamentals. 

The  situation  in  Kansas,  as  it  would  have  been  in 
several  other  Western  states  as  well,  was  complicated 
by  the  fact  that  the  Non-Partisan  League  was 
strenuously  seeking  a  foothold  there.  It  is  the  prin- 
cipal effort  of  the  League  to  neutralize  the  natural 
conservatism  of  the  farmer,  make  a  Socialist  out  of 
him,  and  join  him  up  with  radical  labor  of  the 
Howat  type.  The  movement  in  St.  Paul  and  Minne- 
apolis is  indicative  of  this  purpose,  radical  labor 
being  joined  to  the  so-called  farmers'  organization. 
The  League  is  not  strictly  a  farmers'  organization, 
as  is  generally  supposed,  but  is  deliberately  designed 
as  a  farmer-labor  organization.  How  this  coalition 
worked  in  the  campaign  of  1920  has  been  told  in  a 
previous  chapter. 

The  League  leaders  are  of  the  radical  labor  groups 
rather  than  of  the  farmers.  Arthur  Le  Sueur,  who 
was  the  executive  secretary  of  the  League  for  a  long 
time,  was  an  attorney  whose  time  previously  was 
principally  taken  up  with  a  defense  of  the  I.  W.  W. 
J.  O.  Stevic,  state  manager  for  the  League  in  Kansas, 
is  a  radical  labor  leader,  having  for  a  long  time  held 
the  position  of  president  of  the  Topeka  Industrial 
Council.  The  radicals  of  the  Chicago  Federation  of 
Labor  have  sought  to  cement  the  class  groups  by 


66    THE  PARTY  OF  THE  THIRD  PART 

depositing  all  union  funds  in  the  Non-Partisan 
League  banks  of  North  Dakota. 

If  the  League  had  been  as  strong  in  Kansas  as  it 
was  in  North  Dakota  or  Minnesota,  the  Industrial 
Court  probably  would  have  met  with  stiffer  opposi- 
tion. D.  C.  Dorman,  a  League  leader,  wrote  J.  O. 
Stevic  a  letter  in  which  he  admitted  that  the  League 
had  met  with  stiffer  opposition  in  Kansas  than  in 
any  other  state,  and  this  opposition  had  been  func- 
tioning since  early  in  1917  in  the  shape  of  an  informal 
organization  known  for  convenience  as  the  "Kansas 
Antibolshevik  Campaign."  This  organization,  which, 
functioned  by  means  of  public  speeches,  pamphlets, 
and  newspaper-publicity  service,  conducted  a  cam- 
paign of  education  on  the  subject  of  radicalism,  ex- 
plaining the  fundamental  doctrines,  not  only  of  the 
Non-Partisan  League,  but  of  the  I.  W.  W.  and  left- 
wing  Socialists.  This  organization  checkmated  the 
radical  organizers  at  every  turn.  The  people  were 
warned  not  to  use  violence,  but  to  follow  the  simple 
facts  and  be  prepared.  At  first  the  people  generally 
thought  the  antiradical  apostles  were  fighting  a 
phantom,  but  in  a  year  or  two  they  began  to  see  the 
results. 

One  of  the  fruits  of  the  campaign  was  the  enact- 
ment of  an  antisyndicalism  law,  which  kept  Kansas 
entirely  free  of  incendiary  "wobblies"  during  the 
1920  wheat  harvest.  In  this  case  Kansas  demon- 
strated the  wisdom  of  preparedness.  It  did  not  wait 
to  lock  the  barn  door  until  after  the  horse  was  stolen. 


THE  MAKING  OF  THE  COURT        67 

The  people  of  Kansas  are  well  educated  on  the 
subject  of  radicalism.  They  know  just  how  to  dis- 
tinguish between  radicalism  and  progressivism,  and 
they  are  as  progressive  people  as  there  are  in  the 
country. 

This  situation  is  explained  in  order  to  clear  up 
still  further  the  impression  that  Kansas  being  an 
agricultural  state  made  the  Industrial  Court  law 
any  easier  to  enact.  The  people  of  Kansas  were 
ready  for  it,  and  they  knew  exactly  why  they  were 
ready  for  it.  The  opposition  in  the  campaign  came 
from  misinformed  farmers  just  as  freely  and  heavily 
as  from  misinformed  laborers.  Both  elements  were 
following  the  false  leadership  of  radicals. 

When  the  coal  strike  came  on  the  people  of  Kansas 
became  very  restive.  For  the  first  time  they  were 
brought  squarely  up  against  a  strike  that  actually 
threatened  their  lives  and  health.  Kansas  produces 
more  than  enough  food  to  support  itself.  It  has 
never  had  any  serious  transportation  troubles,  and 
its  wagon  and  automobile  roads  are  unusually  good. 
It  had  never  had  a  shortage  of  clothing.  With  a 
large  supply  of  natural  and  planted  timber  and  fields 
of  oil  and  gas  it  might  have  prepared  adequately  for 
a  fuel  famine  if  there  had  been  sufficient  warning. 
It  was  pretty  largely  on  a  coal-using  basis,  however, 
and  when  it  suddenly  found  that  the  bins  were 
empty  it  began  to  take  a  very  poignant  notice  of 
things. 

That  is  why  the  legislators  who  came  to  Topeka 


68     THE  FARTY  OP   THE  THIRD  FART 

in  January,  1920,  with  a  vivid  realization  of  an  un- 
accustomed peril,  were  practically  unanimous  upon 
a  settled  conviction.  That  conviction  was  that  it 
was  the  unquestionable  province  of  the  government 
to  protect  its  people  from  death  or  suffering  when  an 
industrial  dispute  curtailed  vital  supplies. 

If  the  law  were  really  antagonistic  to  labor  it 
would  involve  other  interesting  questions,  but  the 
law  is  not  antagonistic  to  labor.  It  is  helpful  to 
labor.  Therefore  the  legislators  of  Kansas  felt,  as 
the  legislators  of  all  other  states  should  feel,  that  they 
were  doing  labor  a  real  kindness  in  enacting  a  law 
that  would  eliminate  much  industrial  strife  without 
causing  labor  to  forfeit  any  of  its  real  liberties. 

When  the  special  session  of  the  legislature  was 
called,  both  labor  and  capital  began  to  fight  the  pro- 
posed law,  the  main  features  of  which  were  hinted  at 
in  the  call  for  the  session.  The  employers  called  the 
proposal  "state  socialism."  The  radical  labor  lead- 
ers denounced  it  as  "involuntary  servitude." 

When  the  members  assembled,  an  amusing  con- 
troversy was  held  between  the  radical  and  conserva- 
tive elements  in  the  union-labor  leadership.  The 
radicals  wanted  to  bring  to  Topeka  fifty  thousand 
laboring  men  and  have  them  march  seven  times 
around  the  Capitol  building.  Some  one  evidently 
saw  the  unfortunate  comparison  involved  in  likening 
the  Capitol  building  to  Jericho,  however,  and  the 
conservatives  prevailed  in  this  instance.  It  was  de- 
cided that  the  organized-labor  interests  should  appear 


THE  MAKING  OF  THE  COURT         69 

with  their  lobby  under  the  leadership  of  the  officers 
of  the  four  railway  brotherhoods. 

All  the  union-labor  leaders  announced  that  they 
were  making  the  fight  against  the  Kansas  law  by 
order  of  their  national  organizations.  The  operators 
and  employers  appeared  through  their  lobbyists  and 
attorneys. 

The  bill  had  been  prepared  in  conference  with  the 
judiciary  committees  of  both  House  and  Senate  be- 
fore the  legislature  assembled.  When  it  was  intro- 
duced in  the  House,  the  lower  branch  of  the  legisla- 
ture, declining  to  send  it  to  the  Judiciary  Committee, 
considered  it  in  Committee  of  the  Whole.  The  Sen- 
ate sent  the  bill  to  its  Judiciary  Committee.  The 
House  held  daily  meetings  to  which  the  senators 
were  invited,  and  in  which  the  objections  of  the  labor 
leaders  and  the  representatives  of  the  employers 
were  heard. 

A  number  of  national  labor  leaders  came  to  discuss 
the  proposals.  The  four  brotherhoods  were  pre- 
sented by  one  of  their  officials.  Frank  P.  Walsh  was 
the  most  notable  representative,  of  course. 

Mr.  Walsh  is  a  spokesman  of  that  element  of  labor 
usually  called  radical.  He  is  liberally  quoted  by  the 
I.  W.  W.,  and  he  professes  a  warm  admiration  for 
Alexander  Howat,  the  Kansas  miners'  union  chief. 

The  situation  was  dramatic,  especially  in  the  late 
afternoon  of  the  short  winter  day  on  which  Walsh 
appeared,  as  the  reddening  rays  of  the  Kansas  sun- 
light streamed  in  upon  the  gathering  of  lawmakers 


70    THE  PARTY  OF  THE  THIRD  PART 

who  were  earnestly,  and  it  seemed  prayerfully,  test- 
ing out  every  argument  made  by  the  distinguished 
labor  attorney.  At  the  close  of  his  long  address  he 
was  answering  questions  put  to  him  bluntly,  but  in 
kindly  spirit,  by  keen  legislators — typical  represen- 
tatives of  a  cross  section  of  the  American  public. 
The  central  issue  was  adequately  dramatized. 

On  this  day — the  opening  of  the  period  of  argu- 
ment— the  chaplain,  a  veteran  preacher,  seemed  to 
instill  unusual  solemnity  and  prayerfulness  into  his 
invocation.  He  read  from  the  Bible,  "Righteousness 
exalteth  a  nation,  but  sin  is  a  reproach  to  any  peo- 
ple," as  the  assemblage  stood. 

On  the  rostrum  was  the  typical  labor  lawyer — 
suave,  adroit,  eloquent,  sometimes  couching  radical 
appeal  in  plausible  terms.  On  the  floor  were  the 
senators  and  representatives,  sitting  in  silence  and 
listening  with  the  closest  attention,  analyzing  the 
speaker's  argument.  In  the  gallery  above  were  sev- 
eral hundred  representatives  of  organized  labor. 
These  applauded  the  men  on  the  rostrum  often  and 
vociferously. 

The  state  of  Kansas  is  the  state  of  the  American  Union  which 
more  broadly  and  specifically  delivered  an  invitation  of  this 
kind  in  its  constitution  than  perhaps  any  other  state  [said  Mr. 
Walsh  in  his  opening  remarks].  For  in  the  Bill  of  Rights,  con- 
tained in  the  opening  clauses  of  the  constitution  of  the  state  of 
Kansas,  the  declaration  is  made  that  the  people  may  always 
peaceably  assemble  for  the  purpose  of  instructing  their  repre- 
sentatives as  to  their  wishes,  and  for  the  purpose  of  communi- 
cating their  desires  to  the  government  of  Kansas  and  every 
department  thereof. 


THE  MAKING  OF  THE  COURT        71 

He  visualized  the  situation  correctly.  The  glory 
of  American  free  speech  and  free  and  unhampered 
legislation  was  being  exemplified  in  a  peculiarly  con- 
vincing way.  There  never  will  be  any  accusation 
that  the  Industrial  Court  law  was  rushed  through 
without  giving  the  opposition  a  hearing.  The  op- 
ponents of  the  bill  had  by  far  the  longest  time  allow- 
ance in  arguing  the  proposition. 

Following  are  some  of  the  high  points  of  Mr. 
Walsh's  address: 

My  challenge  in  regard  to  this  bill  is  this:  Are  labor  unions 
beneficial  to  the  state?  Before  I  conclude  my  argument  I  hope 
to  present  the  thought  that  the  passage  of  this  bill  means  the 
destruction,  the  striking  down  of  the  labor  movement  in  Kansas, 
as  it  is  known  in  the  United  States  to-day. 

•  •••••• 

The  struggle  is  not  between  those  who  have  and  those  who 
have  not,  but  let  me  mark,  if  I  can,  the  thought  that  the  struggle 
in  modern-day  social  and  industrial  civilization  has  been,  and  is, 
to-day,  between  the  actual  producers  of  the  community  and 
those  who  live  off  the  actual  producers,  without  a  proper  exercise 
of  their  own.  It  is  true  in  the  history  of  mankind;  aye,  it  comes 
from  above,  that  no  human  being  can  be  intrusted  with  arbi- 
trary power.  I  challenge  the  whole  history  of  the  world,  the 
story  of  every  autocrat  that  has  ruled,  that  when  he  came  to 
the  point  that  nothing  was  so  powerful,  nothing  too  strong  to 
stand  in  his  way,  he  fell  before  the  indignation  of  men  through 
the  force  or  idea  of  some  humble  man. 

•  •••••« 

Now  let  us  look  at  it  first  from  an  economic  standpoint.  In 
1886  many  of  us  lived  in  this  country  during  one  of  the  most 
terrible  strikes  that  ever  took  place  in  the  Southwest — the 
Southwest  Railroad  strike.  At  that  time  I  had  the  privilege  of 
being  a  clerk  in  the  general  offices  of  the  Missouri  Pacific.  Mr. 
Hoxie  was  general  manager  of  the  Missouri  Pacific,  and  a  strug- 


72    THE  PARTY  OF  THE  THIRD  PART 

gle  was  being  made  by  the  employees  to  have  a  hearing,  but 
Mr.  Hoxie  refused.  The  occupation  of  a  switchman  in  those 
days  was  a  little  above  that  of  a  tramp.  He  made  fifty  dollars 
a  month,  worked  twelve  to  fifteen  hours  a  day,  continually  risk- 
ing his  life.  A  gentleman  is  here  protesting  against  this  law 
who  was  a  conductor  running  out  of  Kansas.  He  can  recall  the 
day  when  his  salary  was  fifty  dollars  a  month.  You  will  recall, 
during  those  same  days — for  those  were  the  days  before  these 
so-called  powerful  unions  came  into  existence — that  the  typo- 
graphical union  was  struggling  for  recognition  against  the  power- 
ful press  of  this  country,  the  chief  strikes  being  against  one  of 
the  leading  Kansas  City  papers  and  the  St.  Louis  Post-Dispatch. 
They  were  making  demands  on  their  employers,  who  declared 
they  would  operate  their  own  business  in  their  own  way.  The 
employers  refused  to  meet  the  men,  and  the  strike  came  on. 
In  the  great  railroad  strike  property  was  destroyed,  lives  were 
lost.  Timorous  men  believed  the  structure  of  government  was 
really  threatened.  So  far  as  those  men  were  concerned,  they 
were  too  weak.  They  were  defeated  so  far  as  the  management 
was  concerned,  at  a  great  cost.  Some  of  them,  good  men,  were 
blacklisted  by  every  railroad  all  over  the  United  States.  Stock- 
holders lost  millions  of  dollars,  and  the  executive  management 
of  the  railroad  was  disintegrated.  The  strike  was  a  great  loss 
to  the  men  and  a  great  loss  to  the  state  of  Missouri. 

But  let  us  see.  Since  that  day  there  has  been  no  railroad 
representative  who  has  refused  to  meet  a  regularly  organized 
committee  of  a  regularly  accredited  union.  Those  men,  those 
pioneers,  were  enabled  by  that  struggle  to  gain  a  hearing  in 
what  was  then  the  Supreme  Court  of  Industry,  and  so,  while 
they  have  not  gained  all  they  believe  they  should  have,  the  pay 
of  switchmen  or  of  conductors  or  engineers  has  advanced,  until 
those  men  have  been  able  to  take  their  place  in  citizenship. 

The  American  labor  movement  is  the  one  body  in  the  United 
States  that  acts,  not  only  in  its  own  organization,  but  in  its 
relations  to  the  state  and  to  the  public,  with  the  greatest  degree 
of  altruism.  Within  their  own  organization  they  are  banded 
together  so  that  all  may  have  a  better  life.  I  find  them  side  by 
side,  not  only  giving  up  their  time,  but  also  their  substance  to 


THE  MAKING  OF  THE  COURT        73 

the  community,  not  only  to  raise  their  families,  but  to  perform 
those  duties  without  which  the  state  must  languish  and  die,  so 
that  these  men,  who  at  the  time  of  the  Southwestern  strike, 
deplorable  as  it  was,  were  little  above  the  status  of  slaves, 
because  they  were  held  down  by  their  economic  necessities,  are 
now  able  to  establish  decent  homes. 


The  proposed  bill  is  not  a  new  one.  It  was  presented  time 
and  again  by  the  legislative  bodies  of  this  country  and  the  legis- 
lative bodies  of  Europe.  That  it  contains  in  its  four  corners 
all  of  the  vice  that  we  believe  exists  in  compulsory  arbitrations 
without  any  of  its  virtues,  is  my  firm  conviction.  Its  object  is 
desirable — the  public  welfare,  the  continuance  of  occupation,  etc. 
But  when  we  get  to  the  modus  operand!  for  carrying  out  that 
operation,  it  is  absolutely  lacking  in  this  bill,  and  in  its  essence 
this  bill  is  a  blow  at  the  home  of  every  producer  in  the  state 
of  Kansas  and  every  man  dependent  upon  them. 

I  believe  that  in  its  essence  it  is  unconstitutional.  The  Thir- 
teenth Amendment  of  the  Federal  Constitution  provides  that  no 
slavery  nor  involuntary  servitude,  except  as  the  punishment 
for  crime,  where  the  party  shall  have  been  duly  convicted,  shall 
exist  within  the  United  States.  In  passing  upon  the  Constitu- 
tion of  the  United  States,  the  Supreme  Court  of  the  United 
States  makes  the  following  observation: 

"The  inciting  clause  of  the  Thirteenth  Amendment  was 
the  emancipation  of  the  colored  race,  but  it  was  the  denun- 
ciation of  the  condition,  and  not  in  favor  of  one  particular 
race  of  people." 

And  as  I  look  for  an  interpretation  for  involuntary  servitude, 
from  the  legal  standpoint,  I  can  do  no  better  than  epitomize, 
as  I  have  attempted  to  do,  the  decisions  of  the  Supreme  Court 
of  the  United  States  and  of  the  other  courts  of  this  Union  into 
a  few  words,  that  I  submit  for  the  challenge  of  any  gentleman 
that  may  be  opposed  to  this  definition.  It  is  founded  upon  the 
declaration  of  Mr.  Justice  Hughes,  in  a  very  well-considered 
case,  and  applied  to  the  other  cases  throughout  the  Union,  for 
epitomization: 


74    THE  PARTY  OF  THE  THIRD  PART 

"Involuntary  servitude  is  any  control  by  which  the  per- 
sonal service  of  a  human  being  is  disposed  of  or  coerced  for 
another's  benefit." 

That  does  not  mean  that  the  man  must  be  absolutely  under 
servitude  so  a  master  can  say  to  him,  "You  shall  not  leave  here," 
or,  "You  must  leave  here,"  but  it  is  any  control  by  which  his 
personal  services  are  disposed  of,  of  course,  without  his  will,  or 
coerced,  meaning  not  by  the  lash  of  a  whip,  but  coerced  by  the 
operations  of  the  state,  coerced  by  one  man,  by  a  majority  of 
men  or  by  a  minority,  or  in  any  state,  or  in  any  subdivision  of 
society. 

The  beginning  of  all  genuine  liberty  starts  with  the  liberation 
of  the  actual  producer,  giving  the  actual  producer  the  oppor- 
tunity to  get  the  fruits  of  his  own  toil  to  the  greatest  extent 
compatible  with  the  organization  of  society  and  the  keeping  of 
life  and  health  in  society,  as  a  whole. 

The  bill  proposed  here  is  couched  in  language  that  at  first 
blush,  because  so  much  is  given  to  the  objects  of  the  bill,  causes 
the  average  person  at  a  glance,  as  it  did  me,  to  believe  that 
perhaps  there  was  something  of  merit  in  the  bill.  When  I  came 
to  analyze  it  in  all  of  its  provisions,  and  I  can  speak  now  not 
only  in  the  representation  which  I  hold  here  to-day,  I  can  speak 
as  an  investor  in  your  state.  ...  I  can  speak  as  a  man  of  family 
. . .  from  that  standpoint  I  say  that  this  bill,  from  the  conceptions 
which  I  have  of  American  citizenship  and  the  progress  of  our 
people,  is  absolutely  at  war  with  our  spirit. 

I  believe  in  the  greatest  expression  of  individualism.  I  believe 
those  things  which  the  absolute  necessity  of  the  community 
demands  should  be  operated  by  the  state,  should  be  so  operated, 
or  by  the  municipality,  but  that  every  possible  freedom  should 
be  given  to  human  ingenuity  and  human  activity,  and  that  goes 
to  the  very  heart  of  this  question  that  I  am  trying  to  discuss 
here  to-day.  You  cannot  look  upon  the  labor  of  a  human  being 
as  a  Commodity.  You  cannot  look  upon  it  as  being  subject  to 
contract,  such  as  capital  is,  or  such  as  the  fruits,  the  concrete 
fruits  of  labor  become  dead  material,  but  you  must  look  at  it 


THE  MAKING  OF  THE  COURT        75 

as  human  life.  You  cannot  barter  away  or  contract  for  the 
creative  impulse,  you  cannot  contract  or  barter  away  the  aspira- 
tion that  the  man  has  for  contact  with  his  own  family,  you 
cannot  barter  away  what  is  life,  the  laughter  and  the  tears,  the 
joys  and  sorrows  of  human  beings,  or  the  efforts  of  human 
beings  to  make  the  world  more  beautiful,  and  to  advance  the 
race. 


In  order  to  continue  production,  this  Industrial  Court,  ap- 
pointed by  the  Governor  of  this  state,  is  empowered  to  order 
and  fix  rules,  regulations,  and  practices,  to  govern  the  operation 
of  industry.  Now,  leaving  wages  and  conditions  aside  for  the 
moment,  what  is  this  body  supposed  to  have  the  power  to  do 
to  these  industries?  I  say  to  you  gentlemen,  and  I  say  it  de- 
liberately, it  is  in  Section  No.  16. 

"After  notice  to  all  interested  parties,  and  investigation, 
as  herein  provided,  to  make  orders  fixing  rules,  regulations, 
and  practices,  to  govern  the  operation  of  such  industries, 
employments,  utilities,  or  common  carriers,  for  the  purpose 
of  securing  the  best  service  to  the  public  consistent  with 
the  rights  of  employers  and  employees  engaged  in  the 
operation  of  such  industries,  employments,  utilities,  or 
common  carriers." 

They  have  the  right,  then,  under  Section  16,  to  order  and  fix 
rules,  regulations,  and  practices,  to  govern  the  operation  of  the 
industry. 

Now,  this  is  no  new  idea.  I  am  going  to  lay  this  thing  down  as 
a  fundamental  proposition,  on  Section  16,  and  I  challenge  an 
investigation  of  the  operation  of  laws  in  Germany  and  other 
places  where  it  has  been  tried,  and  in  the  researches  of  students 
throughout  all  history,  if  that  is  not  state  socialism  in  its  most 
odious  form,  and  it  is  not  the  first  time  it  has  been  tried.  .  .  . 
It  is  the  idea  that  the  state,  in  order  to  conserve  the  public  wel- 
fare, may  take  charge  of  the  actual  operations  and  activities  in 
the  production  and  industry,  and  operate  them  itself. 

All  of  the  great  strikes  of  history,  where  there  was  loss  of  life 
and  destruction  of  property,  have  been  those  where  men,  like  in 


76    THE  PARTY  OF  THE  THIRD  PART 

Youngstown,  Ohio,  lived  under  conditions  so  horrible,  and  like 
the  men  did  in  Chicago,  that  without  leadership,  without  thought, 
if  you  will,  they  struggled  to  one  place  and  they  voiced  their 
awful  feeling  of  suffering  and  degradation  without  proper  leader- 
ship, and  unadvised,  many  of  them  unfamiliar  with  our  institu- 
tions, rose  up,  and  it  cost  the  loss  of  life  and  property  in  an 
effort  to  get  together  so  their  own  demands  might  be  heard,  and 
I  say  to  you  gentlemen  of  this  assembly  with  all  the  feeling  that 
I  am  able  to  muster,  that  I  believe  there  would  not  have  been 
an  industrial  dispute  worthy  of  the  name  in  this  country,  causing 
the  loss  of  a  dollar's  worth  of  property  or  a  single  precious  life, 
if  men  recognized  the  rights  of  each  other,  recognized  there 
could  be  no  mastery  in  industry  if  the  co-operative  process  was 
recognized,  that  if  the  employer  was  not  just  he  would  suffer  a 
great  loss  because  his  men  would  not  work  for  him,  and  that 
the  men  should  recognize  that  if  they  did  not  keep  continuously 
in  the  employment  themselves,  then  their  families  would  suffer, 
because  they  would  have  no  employment,  and  the  employer, 
exercising,  as  he  does,  in  every  state  in  the  Union,  the  free  right 
of  collective  bargaining,  and  right  to  select  his  own  agents, 
financial  and  sales  agents,  the  right  to  make  his  own  contracts, 
in  his  own  way,  would  have  accorded  to  the  workers  to  organize 
in  any  state  in  the  Union,  and  make  their  bargains  through  their 
chosen  representatives,  which  they  selected  themselves,  with  the 
idea  that  there  was  no  mastery,  but  there  was  co-operation  .  .  . 
the  country  would  have  gone  generation  after  generation  with- 
out any  labor  dispute. 


Now,  then,  is  it  desirable  to  have  labor  unions?  If  it  is,  then 
do  not  pass  this  law,  because  by  passing  it  you  strike  down  every 
labor  union  in  the  state  of  Kansas,  and  you  draw  a  steel  ring 
around  your  borders  which  says,  "Labor  unions  cannot  come  in." 
The  object  you  give  for  Section  17  is  a  good  object;  production 
shall  not  be  hindered  or  delayed,  that  the  public  shall  not  be 
made  to  suffer  on  that  account;  and  therefore  certain  things  are 
made  illegal.  Now  let  us  understand,  if  we  may,  the  question 
of  strike  or  no  strike.  I  have  often  thought,  as  I  have  tried  to 
observe  and  study  these  things,  that  it  is  very  unfortunate— 


THE  MAKING  OF  THE  COURT         77 

the  terminology  and  phraseology  that  are  used  in  regard  to  indus- 
trials, and  especially  in  regard  to  unions.  I  have  often  thought 
that  the  terms  and  phrases  must  have  been  gotten  up  by  the 
enemies  of  unions.  The  word  "strike"  implies  that  it  means  an 
effort  of  some  kind — there  is  something  in  the  word  that  implies 
violence.  Suppose  we  follow  the  history  of  it,  and  said  it  was  the 
right  of  the  individual  to  quit  work.  Nobody  would  gainsay 
that,  it  is  not  gainsaid  in  this  law.  Or,  if  we  said  that  when  he 
quit  work  he  had  the  right  to  say  to  his  brother,  "We  are  being 
imposed  upon,  we  are  not  getting  enough  to  eat,  we  are  building 
up  an  immense  fortune  for  this  man,  we  shall  ask — we  do  not 
ask  much — but  we  ask  a  minimum  living  wage,"  no  man  could 
object  to  that.  I  do  not  know  a  gentleman  in  this  assembly 
that  does  object  to  it.  There  is  annual,  continuous  operation  in 
some  of  these  great  concerns.  Hundreds  and  thousands  of  men 
have  twelve  hours  a  day,  and  twice  a  year,  twenty-four  hours  a 
day  without  cessation.  You  cannot  believe  it;  and  I  did  not 
until  I  was  brought  face  to  face  with  it.  Do  those  men  not  feel 
that  they  have  been  imposed  upon  when  they  see  other  men 
also  in  need,  their  children  suffering  and  crying  for  bread,  and 
their  wives  seeking  for  some  kind  of  happiness  and  comfort 
in  this  life?  They  will  say,  "This  concern  made  a  profit  dur- 
ing the  war  of  5,00x3  per  cent,  and  here  we  are  without  enough 
to  eat.  Let  us  go  and  meet  in  a  hall,  and  get  together  and  present 
our  grievance  and  tell  them  how  it  is."  If  you  think  I  am  over- 
drawing this  I  shall  be  delighted  to  give  you  the  names,  and  at 
least  a  reference,  so  what  I  say  can  be  followed  up,  in  the  interest 
of  truth.  They  go  together  in  a  hall,  in  their  own  little  meeting 
place — a  dozen,  two  dozen,  fifty — they  discuss  their  grievances. 
It  is  what  you  put  in  your  bill  of  rights.  It  is  why  I  am  here 
to-day  as  an  American  citizen,  why  I  come  with  a  strong  feeling 
of  confidence,  and  why  these  gentlemen  are  sitting  in  a  position 
of  honor.  ...  I  saw  them  in  Youngstown,  whole  communities 
practically  dying  in  pain  and  anguish.  This  great  steel  industry 
was  piling  up  this  great  surplus  that  has  made  it  the  wonder  of 
the  world.  Blinded,  and  with  eye  diseases,  these  men  get  together 
and  try  to  present  their  grievances.  Would  any  gentleman  in 
this  assembly  deny  them  that  right?  I  say  you  would  not. 
You  would  not  deny  them,  because  you  are  American  citizens, 


78     THE  PARTY  OF  THE  THIRD  PART 

because  you  know  the  true  meaning  of  your  Constitution,  you 
know  the  peaceable  assembly  to  redress  grievances. 

Now,  when  the  Clayton  Act  was  passed,  there  was  much  dis- 
cussion; the  greatest  employers  of  this  land,  and  the  best  legal 
talent  that  could  be  employed,  presented  the  various  phases  of 
this  important  question  to  this  legislative  committee  of  the 
Senate  and  House.  Like  action  was  taken  by  the  labor  unions 
of  this  country,  so  the  Clayton  Act,  after  deliberate  consideration, 
exempted  all  foreigners  and  labor  organizations  from  the  opera- 
tion of  the  coercive  parts  of  it.  They  were  separated  out,  be- 
cause they  recognized  the  activities  of  these  men  consisted  of 
the  personal  service  which  they  rendered  to  the  industry,  and 
that  any  inhibition  on  their  right  to  quit  individually  or  in  con- 
cert was  an  assault  upon  the  Thirteenth  Amendment  of  the 
Constitution  of  the  United  States.  I  had  the  great  privilege  of 
being  present  during  a  great  part  of  that  argument,  and  furnish- 
ing a  small  part  of  it,  and  the  deliberate  action  of  the  lawmaking 
body  of  the  United  States  of  America  was  centered  upon  this 
point — the  question  I  am  attempting  to  convey  to  you  to-day — 
that  any  inhibition  on  the  act  of  a  human  being,  so  far  as  any 
disposal  of  his  own  labor  is  concerned,  or  any  coercion,  is  a  vio- 
lation of  that  clause  of  the  Constitution  of  the  United  States 
and  of  the  various  states,  that  preserves  us  from  industrial  servi- 
tude, except  for  crime,  and  then  after  conviction  by  a  competent 
court. 

At  the  conclusion  of  Mr.  Walsh's  speech  he  was 
questioned  closely  by  the  legislators,  all  of  whom 
showed  their  familiarity  with  the  facts  at  issue. 

One  rugged  Scotchman,  with  a  burr  on  his  voice, 
arose  to  inquire  why  the  miners  wanted  a  six-hour 
day,  saying  that  in  his  county  the  farmers  had  ex- 
perimented with  some  of  the  men  from  the  mines  as 
harvest  help,  finding  that  they  were  unwilling  to  put 
in  a  full  day. 


THE  MAKING  OF  THE  COURT         79 

Mr.  Walsh  then  told  of  the  hardships  of  mine  work, 
but  was  interrupted  by  the  legislator,  who  said, 
"  But,  Mr.  Walsh,  I  am  a  miner  myself;  I  have 
worked  in  the  coal  mines  in  the  old  country."  And 
so  it  went.  The  temper  of  the  legislators  was  deter- 
mined, but  good-natured  and  tolerant. 

Mr.  Walsh  occupied  a  whole  day — seven  hours  in 
all.  The  members  all  remained  during  the  discussion 
and  gave  him  the  closest  possible  attention. 

The  next  speaker  was  J.  I.  Sheppard,  attorney  for 
the  Kansas  Federation  of  Labor,  and  for  a  time 
attorney  for  the  Kansas  miners'  union.  He  is  a 
kindly-faced,  white-haired  man,  with  a  large  personal 
following,  and  a  reputation  for  liberality  of  views  com- 
bined with  an  ardent  love  for  the  labor  cause  in  general. 

He  pictured  the  hardships  of  labor  and  the  needs 
of  the  miners,  and  pleaded  for  a  spirit  of  brotherhood 
and  the  application  of  Christ's  teachings.  "What  we 
should  do  is  to  do  away  with  the  tooth-and-claw 
method  and  adopt  the  Golden  Rule,"  he  said.  "I  am 
against  strikes.  I  think  we  should  find  a  substitute 
for  them."  He  did  not  agree  with  Mr.  Walsh  that 
this  sort  of  legislation  had  been  attempted  in  Euro- 
pean countries.  He  saw  in  its  high  purpose  an  ad- 
vanced step,  and  advocated  its  passage  without  the 
penalty  clause.  He  commended  the  action  of  the 
Governor  in  the  coal-strike  proceedings. 

Following  Mr.  Sheppard  was  W.  L.  Huggins,  now 
judge  and  presiding  officer  of  the  Kansas  Court  of 
Industrial  Relations.  He  was  one  of  the  chief 


8o    THE  PARTY  OF  THE  THIRD  PART 

framers  of  the  bill  and  had  a  comprehensive  knowl- 
edge of  its  intent  and  detail.  Extracts  of  his  speech, 
taken  direct  from  the  stenographer's  copy,  are  given 
herewith,  to  give  a  more  understandable  impression 
of  the  discussion: 

With  the  first  speaker  I  was  a  little  disappointed.  I  think  it 
cafn  be  inferred  from  what  was  said  that  he  wanted  to  praise  the 
government  under  which  we  live;  that  he  wanted  us  to  stand 
by  and  support  the  government  of  Kansas;  that  he  believed  in 
this  legislature  and  believed  in  organized  government;  and  that 
his  first  duty  as  a  citizen  was  to  the  government.  But  I  don't 
believe  he  said  it  as  plainly  as  I  would  have  liked  to  have  it  said, 
because  when  asked  from  the  floor,  "Do  you  approve  of  the 
methods  by  which  the  four  brotherhoods  whom  you  represent 
forced  the  passage  of  the  Adamson  law  through  Congress?"  he 
answered  in  the  affirmative — that  he  did  stand  for  those  methods. 
If  you  lawyer  members  of  these  two  bodies  have  not  read  it,  you 
will  read  it.  Chief-Justice  White's  opinion  in  that  Adamson 
law  case,  in  which  he  places  the  constitutionality  of  that  Act  of 
Congress  it  seems  to  me,  at  least,  almost  exclusively  upon  the 
proposition  that  Congress  was  compelled  to  do  that  to  prevent 
a  nation-wide  strike  which  would  have  paralyzed  the  industry 
of  the  country  and  would  have  brought  suffering  to  every  home 
in  the  land.  Is  that  government  by  the  majority?  Is  that 
democracy?  Is  that  government  of  all  the  people,  by  all  the 
people,  for  all  the  people?  If  it  is,  gentlemen,  I  don't  understand 
the  term  "democracy." 

Then  again  he  was  asked  the  question,  "  Do  you  stand  for  the 
methods  adopted  by  the  striking  miners  in  Kansas  when  they 
refused  to  respond  to  the  call  of  the  Governor  and  refused  to 
permit  coal  to  be  produced  in  the  face  of  severe  winter  weather 
and  a  shortage  and  actual  suffering?"  And  he  said  he  did.  If 
I  understand  democracy,  that  is  not  democracy,  and  we  might 
as  well  speak  plainly,  gentlemen. 

I  have  been  asked  by  several  members  of  this  legislature  a 
question  in  regard  to  this  bill,  and  I  want  to  answer  that  question. 


THE  MAKING  OF  THE  COURT        81 

In  fact,  that  question  concerns  a  certain  point  in  this  bill  which 
hasn't  even  been  mentioned  in  this  discussion. 

What  does  this  bill  offer  to  labor?  In  the  first  place  it  offers 
a  tribunal  before  which  labor  can  go  with  any  grievance  which 
it  may  have — that  is,  labor,  in  any  of  the  industries  described, 
and  when  it  approaches  that  tribunal  nobody  can  say,  "Where  is 
your  bond  for  costs?"  The  poorest  laborer  in  the  state  of  Kan- 
sas can  walk  into  this  proposed  tribunal  with  his  pockets  as  empty 
as  the  poorest  man  on  earth,  and  not  a  word  is  said  about  it. 
And  further  than  that,  as  the  matter  proceeds,  the  state  of 
Kansas,  in  the  exercise  of  that  Christian  charity  and  that  humani- 
tarian principle  that  have  been  so  highly  spoken  of  here,  the 
state  of  Kansas,  I  say,  provides  that  poor  laborer  with  expert 
advice  and  expert  assistance;  it  allows  him  to  go  wherever  it 
may  be  necessary  that  he  should  go,  to  take  every  bit  of  evidence 
that  he  wants  to  take  without  his  employing  an  attorney,  with- 
out his  paying  a  dollar  for  traveling  expenses  or  without  his 
employing  an  expert  of  any  kind.  The  state  of  Kansas  says  to 
him,  "  We  will  get  your  evidence  for  you,"  and  thereupon,  with 
a  staff  of  well-paid  and  well-chosen  experts,  it  takes  up  the 
investigation  of  that  dispute,  whatever  it  may  be,  and  develop? 
his  case  for  him  free  of  cost. 

Now,  the  state  does  more  than  that.  When  the  matter  comes 
up  for  trial  before  this  proposed  tribunal,  the  state  arranges 
matters  so  that  the  laborer  doesn't  have  to  bring  any  kind  of  a 
lawyer,  high  or  low,  into  that  court.  There  is  the  staff  paid  by 
the  state  to  develop  all  the  facts;  this  bill  enjoins  this  tribunal  to 
do  all  the  things  necessary  to  ascertain  the  facts  and  the  truth  of 
the  case.  So  the  laborer  comes  into  court  protected  by  the  state, 
under  the  law,  and  offers  his  testimony  and  submits  his  cause. 

But,  another  thing  is  done  for  him.  The  bill  provides  that  the 
evidence  shall  be  taken  in  shorthand  by  a  reporter  paid  by  the 
state,  and  that  evidence  shall  be  transcribed  in  duplicate,  on* 
copy  of  which  shall  be  filed  in  the  permanent  records  of  thn 
tribunal  and  the  other  which  shall  be  used  in  the  supreme  court 
of  the  state  of  Kansas.  If  the  poor  laboring  man  concludes  that 
he  has  not  received  justice  in  the  Court  of  Industrial  Relations, 
his  case  is  prepared  for  him,  and  he  goes  up  to  the  supreme  court 
— the  best  court  in  the  state  of  Kansas,  and  as  good  a  court  at 

6 


82    THE  PARTY  OF  THE  THIRD  PART 

any  in  the  United  States  of  America — without  cost  and  without 
having  to  put  up  security  for  costs. 

It  is  intended  to  mean  that  any  employee  can  quit  his  employ- 
ment at  any  time  for  an  honest  purpose,  but  that  if  he  conspires 
and  confederates  with  others  to  quit,  it  must  be  for  a  lawful 
purpose  and  not  an  unlawful  one.  There  is  nothing  in  the  bill 
that  prevents  labor  from  holding  a  meeting  in  a  hall  for  discuss- 
ing its  wrongs.  There  is  not  a  line  in  this  bill  that  penalizes  a 
man  for  attending  such  a  meeting.  It  is  only  when  done  for  the 
purpose  for  which  that  coal  strike  was  called.  It  is  admitted 
here  that  that  strike  was  called  for  the  purpose  of  so  afflicting 
the  people  of  this  state  that  the  people  would  compel  the  coal 
operators  to  do  something  they  didn't  want  to  do.  Labor,  by 
that  coal  strike,  made  hostages  of  the  people  of  Kansas.  Does 
this  law  make  a  labor  union  unlawful  in  Kansas?  I  say,  "No." 
Every  honest  labor  union,  every  labor  union  that  is  composed 
of  loyal,  upright  American  citizens  who  are  willing  to  abide  by 
the  laws  of  the  land  in  which  they  live,  may  continue  its  work. 

There  are  some  things  that  I  will  not  debate  with  any  man, 
and  one  of  those  questions  is  the  question  of  obedience  to  the 
law  of  the  land.  That  is  not  debatable.  Loyal,  patriotic  Ameri- 
can citizens  will  obey  the  law  from  choice,  and  the  other  kind 
will  be  compelled  to  obey  it.  All  this  talk  about  inability  to 
enforce  the  law  in  Kansas  is  nonsense,  gentlemen.  This  is  a  land 
of  law  and  order,  and  when  this  law  is  enacted  it  will  be  enforced; 
and,  as  the  gentleman  from  Chautauqua  County  says,  "  If  it  is 
necessary  to  enforce  it  by  a  penalty,  the  penalty  ought  to  be 
somewhere  where  it  could  be  reached."  I  am  raising  a  family, 
and  I  am  the  oldest  son  of  a  large  family,  and  I  was  taught  the 
Golden  Rule  and  the  Ten  Commandments.  There  was  a  time 
when  I  could  repeat  the  Sermon  on  the  Mount,  but  please  don't 
ask  me  to  do  it  now.  I  believe  in  all  those  things;  but  in  the 
same  Book  that  gives  us  the  Golden  Rule  and  the  Ten  Com- 
mandments and  the  Sermon  on  the  Mount  is  a  passage  which 
an  old  Baptist  friend  of  mine,  who  believes  very  strongly  in 
immersion,  used  to  quote  often,  and  to  this  effect,"  Whosoever 
bclieveth  and  is  baptized  shall  be  saved,  but  whosoever  believeth 


THE  MAKING  OF  THE  COURT        83 

not  shall  be  damned."  That  is  the  penalty.  And  he  wasn't 
talking  about  horse  thieves,  either — he  was  talking  about  me 
and  you  and  Uncle  Jake,1  the  good  old  soul. 

This  legislature  has  always  been  fair  to  labor,  and  I  believe 
if  Uncle  Jake  Sheppard  had  thought  of  it  he  would  have  told 
you  so  in  his  speech.  Labor  has  been  before  this  legislature  and 
its  representatives  from  time  to  time,  and  we  have  on  the  statute 
books  of  this  state  a  labor  code  which,  if  not  up  to  date,  ought 
to  be  brought  up  to  date.  All  that  labor  has  to  do  is  to  ask  this 
legislature  for  anything  fair,  and  I  think  I  speak  almost  with 
authority  when  I  say  that  the  legislature  will  grant  anything 
that  is  fair.  We  have  our  mine-inspection  laws,  our  labor  laws, 
our  safety-appliance  acts,  our  workmen's  compensation  act,  our 
welfare  commission,  and  so  far  as  I  know  no  important  and 
fair  law  has  been  asked  for  that  hasn't  been  granted. 

Now,  is  this  an  antistrike  bill?  It  certainly  is  not,  and  it  is 
wrong  to  call  it  so.  At  least,  it  is  not  an  antistrike  bill  in  the 
sense  they  try  to  make  it  out  to  be.  It  does  not  prevent  any 
man  or  set  of  men  from  leaving  their  work.  It  does  say  that 
when  you  quit  your  employment  you  have  to  quit  your  job. 
That  is  all  it  says.  It  says  to  the  labor  union:  You  can't  eat 
your  cake  and  have  it.  When  you  quit,  you  quit.  And  it  says, 
when  you  quit,  if  somebody  else  wants  to  come  and  work  in  your 
place,  you  can't  prevent  him  from  doing  it.  That  is  all  it  says, 
and  if  the  language  isn't  as  plain  as  the  English  language  can 
be  made  on  that  point,  I  know  that  I  speak  for  Governor  Allen 
when  I  say  he  wants  it  made  plain.  No  man  is  required  to  work 
in  any  particular  employment  for  any  particular  length  of  time 
unless  he  wants  to.  The  idea  that  the  state  of  Kansas  would 
even  seriously  consider  a  bill  which  meant  slavery  for  the  work- 
ingman !  You  would  have  thrown  this  bill  out  of  the  window  the 
first  morning;  you  would  not  have  let  it  be  read  a  second  time; 
you  wouldn't  have  referred  it  to  a  committee;  you  wouldn't  have 
listened  to  a  man  who  proposed  it  if  it  had  had  a  line,  sentence,  or 
syllable  in  it  that  hinted  at  slavery  for  the  workingman.  .  .  . 

1J.  I.  Sheppard,  attorney  for  the  Kansas  Federation  of  Labor,  who 
oreceded  Mr.  Huggins  in  the  discussion. 


84    THE  PARTY  OF  THE  THIRD  PART 

Now  the  question  arises:  Can  you  enforce  the  order  provided 
for  in  this  bill?  That  is  a  subject  I  won't  discuss  at  great  length 
because  the  lawyers  in  this  legislature  will  take  care  of  that.  I 
believe  it  can  be  done,  and  I  base  my  opinion  not  altogether 
upon  adjudicated  cases — I  base  it  primarily  upon  this  fact  (and 
I  believe  every  man  present  will  admit  it  is  a  fact),  that  in  every 
Anglo-Saxon  country  in  the  world,  every  government  (this  is  an 
Anglo-Saxon  country  because  our  laws  and  institutions  are 
founded  upon  the  English  common  law),  every  permanent  addi- 
tion to  the  body  of  the  law,  every  enactment  which  has  become 
permanent  and  remained,  has  grown  out  of  some  great  public 
necessity.  In  Anglo-Saxon  countries  the  law  springs  from  the 
common  level  of  the  general  public.  In  monarchical  countries 
it  comes  the  other  way — from  the  top  down.  In  our  country 
it  comes  from  the  bottom  and  springs  up,  and  every  permanent 
law  takes  root  in  human  necessity  as  the  tree  takes  root  in  the 
soil.  Let  me  illustrate  briefly.  Two  hundred  and  fifty  years 
ago  Sir  Matthew  Hale,  one  of  the  great  judges  of  England,  later 
lord  chief  justice,  wrote  a  paragraph  concerning  public  use  which 
has  been  said  to  be  the  greatest  expression  of  its  kind  that  ever 
was  printed,  and  it  was  about  as  follows:  He  said  that  if  the 
king  himself  (mark  that  word  "king")  is  the  owner  of  a  public 
wharf  to  which  all  persons  must  come  to  unload  their  goods, 
even  he  cannot  make  excessive  charges  for  wharfage,  cranage, 
and  the  like,  because  the  wharf,  the  crane,  and  the  other  loading 
facilities  are  public  utilities,  and  are  no  longer  to  be  regarded  as 
private  property  only.  That  was  a  long  time  ago,  but  that  has 
been  the  law  in  every  English-speaking  country  of  the  world 
ever  since.  Never  has  it  been  gainsaid.  We  have  extended  the 
principle — extended  it  in  Kansas  a  good  many  years  ago  when 
we  passed  the  law  creating  the  railroad  board;  extended  it 
farther  when  we  created  the  Public  Utilities  Act,  so  that  we  have 
now  not  only  fixed  the  price  which  the  public  must  pay  for  these 
things,  but  we  have  compelled  the  continuance  of  the  service, 
compelled  the  railroads  to  run  their  trains — to  run  continuously; 
haven't  allowed  a  road  to  take  off  a  freight  train  in  order  to  boost 
the  price  of  freight;  haven't  allowed  an  electric-light  plant  to 
shut  down  its  service.  Now  we  propose  to  go  just  one  step 
farther  than  that,  and  here  is  where  we  get  the  different  opinions 


THE  MAKING  OF  THE  COURT        85 

of  lawyers.  We  lawyers  think  nothing  is  constitutional  unless 
some  court  has  said  it  is  constitutional,  but  if  we  should  stop 
where  the  court  stops  we  would  never  be  able  to  make  any 
progress.  Some  bold  spirit  has  got  to  go  farther.  Some  legisla- 
ture has  got  to  pass  the  law  before  the  court  can  tell  us  whether 
it  is  constitutional  or  not.  So,  in  this  bill,  we  are  stepping  out 
a  little  bit  farther,  and  we  are  saying  that  not  only  shall  the 
railroads  be  compelled  to  furnish  service,  not  only  shall  the 
electric-light  company  be  compelled  to  furnish  its  service,  and 
the  water  company,  and  the  telephone  company,  but  because  of 
the  very  necessities  of  the  case  the  people  must  have  food,  cloth- 
ing, and  fuel.  Therefore,  we  say  to  the  concerns  which  furnish 
those  products,  the  bare  necessities  of  life:  "You  shall  not  cease 
operations  and  let  the  people  go  hungry.  You  shall  not  cease 
operations  and  let  the  people  freeze." 

But  what  kind  of  a  government  did  they  set  up  down  there 
last  fall  to  induce  Frank  Walsh  to  say  he  is  in  favor  of  a  govern- 
ment which  says,  "My  first  duty  is  to  the  union;  my  second 
duty"? — Well,  it  didn't  go  that  far;  I  don't  know  whether  it 
would  admit  it  had  any  duty  to  the  state  or  union — he  said, 
"My  first  duty  is  to  the  union."  He  doesn't  get  that  in  the 
Sermon  on  the  Mount,  nor  in  the  Declaration  of  Independence, 
and  he  doesn't  get  it  in  the  Constitution  of  the  United  States 
nor  the  state  of  Kansas.  I  don't  know  where  he  got  it,  but  I 
know  that  that,  in  principle,  is  Bolshevism,  and  I  am  not  afraid 
to  call  it  by  its  right  name. 

What's  the  matter  with  American  labor?  It  is  tainted  with 
Bolshevism.  Just  that,  and  nothing  more.  The  radical  leaders, 
the  ideas  imported  here  from  Russia,  have  all  got  into  labor, 
while  the  loyal  element  is  inarticulate. 

Now  I  want  to  say  this:  everybody  claims  he  is  the  friend  of 
labor.  I  am  not  going  to  parade  myself  as  any  special  friend  of 
labor.  Nevertheless,  I  am  a  sincere  friend,  and  on  that  account 
I  want  to  give  to  labor  and  its  representatives  just  a  little  good 
advice.  Put  out  the  radicals,  and  if  you  can't  do  that,  come 
out  from  among  them. 

Here  is  a  bill  that  attempts  to  remedy  a  great  abuse.  Now, 
I  am  not  going  to  tell  you  this  is  going  to  bring  about  the  millen- 


86    THE  PARTY  OF  THE  THIRD  PART 

nium,  but  if  this  bill  becomes  a  law,  it  puts  into  effect  the  very 
best  force  the  state  can  furnish,  free  of  cost  to  the  laboring  man, 
to  investigate  and  adjudicate  all  those  wrongs  he  has  been 
suffering  from,  lo,  these  many  years — a  bill  which  provides  for 
the  very  thing  that  Uncle  Jake  Sheppard  and  Frank  Walsh  were 
talking  about  and  which  they  hoped  to  have  passed  by  resorting 
to  conciliation  and  arbitration  within  the  industry.  There  isn't 
a  line,  a  word,  nor  a  syllable  in  this  bill,  from  start  to  finish,  that 
will  prevent  a  situation  arising  similar  to  that  in  that  big  shoe 
factory  which  Uncle  Jake  told  us  about  this  morning.  I  don't 
know  why  he  introduced  that  point  unless  he  was  preaching  a 
sermon,  but  it  hasn't  anything  to  do  with  this  bill.  There  is 
nothing  in  this  bill  that  prevents  the  laborer  and  the  employer 
from  getting  together  on  any  kind  of  a  proposition  they  want  to 
put  into  effect.  And  in  fact  there  is  a  strong  urge  in  this  bill 
to  induce  that  kind  of  a  thing.  I  will  tell  you  what  it  is,  and 
I  think  you  will  all  understand.  It  is  this:  You  know,  you 
lawyers,  how  many  disputes  between  private  individuals  are 
settled  because  neither  side  wants  to  incur  the  expenses  of  a 
lawyer.  In  fact,  I  never  found  anybody  who  wanted  to  pay  a 
lawyer.  You  know  how  many  disputes  are  settled  between 
neighbors  in  a  friendly  way  because  they  don't  want  to  go  to 
the  expense  of  a  lawsuit.  And  I  believe  every  lawyer  in  this 
body  would  agree  with  me  that  far  more  cases  are  settled  before 
they  get  into  court  than  are  litigated.  I  believe  it  is  the  experi- 
ence of  every  lawyer.  People  in  general  don't  want  to  go  into 
the  courts  to  waste  their  money  on  litigation,  so  they  get  together 
and  settle  it. 

Suppose  that  a  dispute  comes  up  between  employers  and 
employees  in  some  of  these  industries.  Perhaps  there  are  mighty 
good  reasons  why  the  employers  don't  want  to  go  into  this  court, 
because  every  book,  letter  file,  and  record  of  any  kind  they  have 
is  liable  to  be  brought  before  this  court  and  is  subjected  to  un- 
friendly eyes,  at  least  to  eyes  not  interested  in  the  business; 
and  more  than  that,  it  is  made  a  public  record.  Now  if  employ- 
ers have  anything  they  don't  want  the  public  to  know,  they  will 
not  want  that  dispute  with  labor  to  get  before  this  body.  So 
labor  and  capital,  to  avoid  litigation,  will  get  together,  formu- 
late working  rules,  and  agree  on  the  manner  of  adjustment  of 


THE  MAKING  OF  THE  COURT         87 

differences.  They  will  appoint  their  working  committees,  and 
thus  without  any  litigation  labor  will  get  its  rights  and  capital 
will  proceed  to  produce  the  things  that  are  necessary  for  human 
life,  and  everything  will  go  on  smoothly.  To-day  there  is  no 
such  motive  as  that. 

So  I  say  that  this  bill,  while  it  won't  produce  the  millennium, 
will  encourage  all  those  methods  of  conciliation  and  arbitration 
which  Mr.  Walsh  spoke  about,  and  which  were  discussed  by  the 
eloquent  speaker  this  forenoon. 

•  ••••»• 

Now  I  am  going  a  little  farther,  and  say  you  have  no  right,  no 
moral  right,  to  take  away  the  laboring  man's  right  to  strike, 
unless  you  give  him  a  better  remedy.  You  study  that  over,  all 
of  you.  You  have  no  right  to  take  away  the  laboring  man's  only 
weapon  unless  you  give  him  a  better  one.  Why,  I  have  lived  in 
a  community  in  which  it  was  necessary  to  carry  a  revolver.  I 
didn't  like  it  very  well,  and  didn't  stay  there  very  long,  but  it 
was  necessary,  and  I  carried  one — because  the  law  didn't  pro- 
tect me.  It  was  down  in  Mexico,  where  they  don't  have  any 
law  of  any  kind.  Now  we  have  passed  a  statute  in  which  we 
make  it  a  crime  for  a  man  to  carry  concealed  weapons.  We 
have  a  right  to  do  that  as  a  state,  because  we  have  surrounded 
every  citizen  by  the  greatest  protection  that  ever  was  known, 
the  protection  of  Anglo-Saxon  law,  guaranteeing  Anglo-Saxon 
liberty  and  justice.  Consequently,  he  doesn't  need  his  weapon, 
and  we  have  a  right  to  say  to  him,  "You  can't  have  it."  We 
have  never  given  labor  a  weapon  of  self-defense,  so  we  have  to 
let  labor  carry  a  gun — that  is,  the  right  to  strike;  and  if  you 
can't  give  labor  a  better  weapon,  for  God's  sake  don't  take  the 
only  weapon  it  has  away  from  it.  You  are  offering  labor  a 
weapon  which  makes  the  old  weapon  unnecessary.  You  are 
offering  it  a  legally  constituted  tribunal  composed  of  impartial 
judges,  and  all  the  machinery  necessary  to  give  free  and  even- 
handed  justice,  with  power  to  enforce  against  the  employers  the 
duty  of  paying  a  fair  wage,  of  granting  fair  hours  of  labor,  and 
good,  moral,  and  healthful  surroundings,  while  they  are  engaged 
in  that  labor;  and  the  bill  says  so  in  that  many  words.  And 
when  you  have  given  labor  that  other  weapon,  when  you  have 
given  it  a  court  to  which  to  go  and  surrounded  it  by  the  pro- 


88    THE  PARTY  OF  THE  THIRD  PART 

tection  of  law,  you  have  the  same  right  to  take  away  the  weapon 
of  the  strike  as  you  have  to  make  a  law  preventing  me  from 
carrying  a  concealed  weapon;  you  have  gone  farther  toward 
the  establishment  of  industrial  peace;  you  have  gone  farther  to 
insure  to  labor  a  fair  reward;  you  have  gone  farther  to  insure 
to  every  laboring  man  the  right  and  ability  to  bring  up  his 
family,  to  educate  his  children,  and  to  give  them  good,  moral, 
and  educational  surroundings,  than  any  state  or  nation  has  done 
since  the  founding  of  society.  And  Kansas  again  has  led  the 
world. 

Any  man  who  says,  "My  first  duty  is  to  my  union,  or  to  my 
church,  even,  or  to  my  lodge — I  owe  no  allegiance  to  the  gov- 
ernment of  the  United  States  nor  to  the  state  of  Kansas  that  I 
will  not  freely  set  aside  if  my  union,  lodge,  or  church  tells  me  to" 
— no  man  who  believes  in  that  is  a  good  citizen.  No  man  who 
acts  in  this  manner  should  be  granted  the  protection  of  the  law 
which  he  despises,  and  no  penalty  which  you  can  impose  upon 
that  kind  of  a  man  is  too  severe. 

I  want  to  tell  you  another  thing.  If  we  believe  in  democracy, 
if  we  believe  in  the  perpetuity  of  that  government  for  which  the 
fathers  of  the  Revolution  shed  their  blood,  if  we  believe  in  the 
reunited  Union  which  sprang  from  the  bloody  fields  of  the 
Civil  War,  if  we  believe  in  making  the  world  safe  for  democracy, 
if  we  believe  in  making  democracy  triumph  in  the  United  States 
of  America,  we  have  got  to  fight.  We  can't  do  it  by  folding  our 
hands  and  keeping  our  mouths  shut.  Frank  Walsh  says  there 
is  no  politics — no  labor  union  is  indulging  in  politics — but  I  have 
a  letter  in  my  pocket  which  I  shall  read  in  part.  It  is  addressed 
to  one  of  the  members  of  this  body,  signed  by  what  purports 
to  be  a  committee  of  the  labor  union,  "We  have  also  resolved 
not  to  support  statesmen  in  the  future  who  will  indorse  or  work 
for  antistrike  legislation."  That  is  politics.  But  it  doesn't  get 
them  anywhere.  I  believe,  gentlemen,  that  even  the  senators 
and  representatives  who  come  from  the  regions  most  affected 
will  vote  their  convictions  without  regard  to  that  threat.  But 
it  is  politics,  and  can't  be  gainsaid.  I  don't  know  what  they  will 
do  in  Missouri.  I  wish  Missouri  well.  I  don't  know  what  they 
will  do  in  Arkansas,  nor  Colorado,  but  I  believe  I  know  what 


THE  MAKING  OF  THE  COURT         89 

Kansas  will  do  when  it  comes  to  a  question  of  surrendering 
American  democracy  to  the  Soviet,  or  fighting  for  it — Kansas 
will  fight. 

About  the  time  that  Mr.  Huggins  was  speaking  in 
the  House  the  attorneys  for  the  employers  were  pre- 
senting their  objections  before  the  Senate  committee. 

Representatives  of  the  public  were  given  about 
a  half  a  day  in  all.  One  of  the  best  known  of  these 
was  William  Allen  White,  the  widely  known  Kansas 
author  and  newspaper  man.  While  attending  the 
Peace  Conference  at  Versailles  Mr.  White  was  ap- 
pointed delegate  to  the  proposed  Prinkipo  conference 
with  the  Soviet  government.  It  was  a  far  cry  from 
Prinkipo  to  Topeka  and  from  Sovietism  to  so-called 
antistrike  legislation,  but  Mr.  White's  address 
showed  the  broad  sanity  of  his  philosophy,  which  is 
really  always  the  accomplishment  of  the  greatest 
good  to  the  largest  number  and  the  protection  of 
orderly  functions  of  honest  government. 

Mr.  White  is  friendly  to  labor  even  to  the  point  of 
being  accused  of  extremism  at  times,  so  his  address 
is  of  especial  importance. 

He  reviewed  the  evolution  of  government  supervision 
over  private  affairs  and  quarrels,  and  declared: 

In  ten  years  the  labor  unions  will  look  back  to  this  step  of  the 
Kansas  legislature  as  the  day  that  heralded  the  emancipation 
of  American  labor. 

He  said  further,  in  part: 

As  civilization  grows,  it  grows  more  complex.  Civilization  is 
the  constant  enlargement  from  the  more  simple  form  to  the 


90    THE  PARTY  OF  THE  THIRD  PART 

more  complicated  form,  and  it  will  never  return  to  the  simpler 
form.  To-day  we  are  taking  in  Kansas  a  step  which  must  be 
taken  throughout  the  world.  To  affect  with  public  use  all  those 
interests  which  are  concerned  with  productive  industry,  we  are 
in  effect  making  them  public  utilities. 

Every  age,  every  century,  and  in  these  modern  times  every 
decade,  sees  some  business  or  interest  formerly  considered  pri- 
vate business  or  private  interest  set  over  in  the  public  interest. 
Two  hundred  years  ago,  when  a  gentleman  had  a  quarrel  with 
another  gentleman,  it  was  supposed  to  be  a  private  quarrel, 
which  should  be  settled  under  a  private  code  called  dueling,  but 
too  many  innocent  bystanders  got  hurt  and  dueling  was  stopped 
in  the  interest  of  the  public.  Time  was  when  a  quarrel  between 
a  slave  and  his  master  was  a  private  matter,  and  the  master  had 
private  rights  over  his  slave.  That  was  stopped.  Time  was 
when  a  man's  money  invested  in  bank  stocks  or  railroads  was 
considered  private  money.  It  was  considered  an  infringement 
of  private  rights  to  interfere  with  that  money,  but  government 
affected  all  money  invested  in  banks  and  public  utilities  with 
public  interest,  and  regulated  and  controlled  that  money  in  the 
interest  of  the  public  and  took  away  personal  rights  for  the 
private  good. 

The  pirate's  right  was  once  a  private  right,  but  that  right  was 
removed  for  the  public  good,  and  when  labor  and  capital  engage 
in  a  brawl  which  threatens  daily  processes  of  civilization,  we  are 
taking  away  the  right  to  that  brawl  and  saying  the  quarrel  must 
be  settled  in  the  public  interest. 

The  public,  in  establishing  wages,  will  be  interested,  not  in 
labor  as  a  commodity,  but  in  labor  as  a  citizen.  The  public  is 
interested  in  capital  chiefly  to  see  that  capital  gets  justice;  that 
it  has  a  fair  return  and  a  profit  sufficiently  large  to  encourage 
enterprise,  which  is  our  God-given  gift — the  gift  which  dis- 
tinguishes America  from  all  the  world;  and  by  trusting  to  the 
public — that  is  to  say,  trusting  to  the  organized  forces  of  society 
in  government — to  adjudicate  wages,  capital  will  find  a  just  and 
equitable  bureau  or  court  or  commission,  or  what  you  will,  and 
in  ten  years  capital  will  regard  this  day  as  the  beginning  of  a 
new  era  in  its  organization.  We  are  not  trying  to  throttle  capital 
and  labor  in  Kansas,  but  to  emancipate  them  from  their  own 


THE  MAKING  OF  THE  COURT        91 

strangle  hold  upon  each  other  and  to  establish  an  equitable  and 
living  relation  between  them. 

Dr.  E.  J.  Kulp,  a  Topeka  minister,  also  appeared 
before  the  legislature  to  speak  in  favor  of  the  bill, 
and  Dr.  A.  M.  Brodie,  a  widely  known  minister  of 
Wichita,  was  also  very  active  in  its  behalf. 

No  law  upon  the  statute  books  has  received  the 
intelligent  interest  of  the  legal  profession  to  the  ex- 
tent that  the  Industrial  Court  law  has.  Many  leading 
lawyers  of  the  state  were  consulted  at  the  time  the 
bill  was  going  through  its  initial  preparation. 

The  two  houses  acted  deliberately,  and  when  the 
law  was  finally  passed  there  were  only  seven  votes 
against  it  in  the  Lower  House  and  four  votes  against 
it  in  the  Senate.  In  the  1920  primaries  some  of  the 
men  who  voted  against  the  bill  were  defeated  for  re- 
nomination,  while  others  declined  to  run.  The 
senator  from  Alexander  Howat's  own  district  who 
voted  against  the  bill  in  the  special  session  was 
defeated  by  a  Pittsburg  business  man,  who  conducted 
his  campaign  upon  a  platform  indorsing  the  Indus- 
trial Court.  There  will  be  even  less  opposition  to 
the  court  in  the  future  legislatures  than  there  was 
in  the  special  session. 

The  bill  became  a  law  after  seventeen  days  of  con- 
sideration. Democracy  had  functioned  in  an  orderly 
and  distinctively  American  fashion. 


VI 

THE  CARNEGIE  HALL  DEBATE 

EVEN  while  we  were  discussing  in  the  special 
session  of  the  Kansas  legislature  the  possi- 
bility of  a  law  creating  an  industrial  court, 
Samuel  Gompers,  president  of  the  American  Federa- 
tion of  Labor,  was  quoted  as  warning  the  Kansas 
legislature  not  to  pass  any  law  which  would  abridge 
the  right  of  strikes. 

His  representatives  in  Kansas  joined  with  the 
representatives  of  the  four  American  brotherhoods 
in  a  program  of  resistance  to  the  law,  and  gave  as 
their  reasons  that  they  were  directed  to  make  this 
fight  by  their  national  organizations.  Both  the  rep- 
resentatives of  the  brotherhoods  and  of  the  American 
Federation  stated  that  their  instructions  were  to 
fight  the  law  and  that  they  were  informed  that  they 
would  have  whatever  assistance  could  be  rendered 
through  the  national  organizations. 

When  the  law  had  passed,  the  next  order  which 
went  out  was  that  the  Kansas  law  should  not  be 
allowed  to  spread  to  other  states. 

For  nearly  three  months  thereafter  President 
Gompers  spent  considerable  of  his  time  visiting  cities 


THE  CARNEGIE  HALL  DEBATE        93 

and  legislative  bodies  to  which  I  had  been  invited 
for  the  purpose  of  discussing  the  Kansas  industrial 
program.  Whenever  I  appeared  before  a  legislative 
body  in  New  Jersey,  New  York,  or  Massachusetts, 
Mr.  Gompers  usually  came  the  next  week.  He  began 
to  assail  the  law  even  before  he  had  studied  it,  and 
my  belief  is  that  he  never  gave  it  a  moment  of  sincere 
or  impartial  consideration.  His  remarks  about  the 
law  and  its  motives  were  uniformly  partisan  and 
immoderate. 

So  there  had  been  going  on  between  us  a  contro- 
versy which  resembled  a  joint  debate.  Therefore, 
when  an  opportunity  was  presented  to  meet  Presi- 
dent Gompers  at  Carnegie  Hall,  New  York,  I  was 
very  glad  to  embrace  it,  not  that  I  believed  I  could 
affect  his  viewpoint  upon  the  situation  or  the  view- 
point of  many  of  his  fellow  officials,  but  because  I 
hoped  that  we  could  dramatize  the  controversy 
sufficiently  to  inspire  the  public  to  study  with  intel- 
ligent concern  the  program  we  were  offering  in 
Kansas. 

The  interest  in  the  meeting  was  highly  gratifying. 
I  was  told  by  my  friends  that  more  than  twenty 
thousand  requests  for  seats  were  refused  because 
the  limited  space  of  Carnegie  Hall  had  been  ex- 
hausted. The  first  controversy  with  Mr.  Gompers 
was  over  the  title  of  the  debate.  He  desired  to  limit 
the  subject  to  a  theme  which  he  himself  had  phrased, 
"Has  the  state  a  right  to  prohibit  strikes?" 

I  objected  to  this  as  being  too  narrow  a  limitation 


94    THE  PARTY  OF  THE  THIRD  PART 

upon  the  discussion  of  the  entire  problem  of  the  in- 
dustrial controversy,  and  submitted  the  following 
title:  "The  Industrial  Controversy;  President  Gom- 
pers  will  present  the  remedy  of  the  American  Fed- 
eration. Mr.  Allen  will  present  the  remedy  as  pro- 
posed in  the  Industrial  Court." 

President  Gompers  refused  to  entertain  this  pro- 
posal, and  I  then  notified  him  that  I  would  be  at 
Carnegie  Hall  on  the  evening  of  May  28th  to  discuss 
the  entire  industrial  situation  from  any  standpoint 
he  wished,  and  invited  him  to  be  there.  I  knew  he 
would  be  there.  He  had  gained  the  right  to  open 
the  debate  through  the  drawing  of  lots.  This  ex- 
planation indicates  the  reason  why  the  issue  between 
us  was  not  more  closely  defined. 

By  eight  o'clock  every  seat  in  Carnegie  Hall  had 
been  filled  and  a  large  crowd  had  congregated  in  the 
streets.  By  common  consent  the  aisles  were  filled 
to  whatever  capacity  the  police  permitted,  and  all 
the  standing  room  was  given  over. 

This  audience,  crowding  the  hall  to  its  limits,  re- 
mained for  more  than  three  hours  and  a  half.  There 
were  three  elements  in  the  audience:  those  who  had 
come  committed  to  Gompers's  ideas;  those  who  were 
hard-and-fast  sympathizers  with  the  Industrial  Court 
idea  or  any  other  idea  that  meant  industrial  peace; 
then  there  was  an  element,  not  very  large,  but  open- 
minded,  and  not  yet  committed  to  the  idea  of  the 
Industrial  Court. 

The  thing  that  interested  me  most  was  this  great 


THE  CARNEGIE  HALL  DEBATE        95 

audience;  its  raw,  tense  emotions,  its  normal  reac- 
tions, and  yet,  all  things  considered,  its  splendid 
self-control.  It  was  a  pent-up  audience,  in  which 
anything  might  have  happened  and  yet  all  of  the 
explosions  were  free  from  damage. 

The  stage  contained  a  distinguished  audience  of 
New  York  people,  representing  the  best  thought  of 
that  great  city;  and,  sitting  alongside,  a  distinguished 
audience  composed  of  the  officials  of  union  labor,  a 
body  of  men  numbering  several  hundred,  who  serve 
as  the  national  heads  of  the  various  organized  crafts. 
It  is  doubtful  if  ever  before,  under  one  roof,  were 
gathered  so  many  national  union-labor  leaders  and 
so  many  New  York  business  and  professional  men. 

At  only  one  time  did  it  seem  possible  that  the 
audience  might  lose  its  self-control.  That  was  when 
I  was  seeking  to  answer  Mr.  Gompers  on  the  subject 
of  the  attitude  of  labor  leaders  during  the  war.  The 
attitude  of  Mr.  Gompers's  following  did  not  seem  to 
be  characterized  so  much  by  anger  at  what  I  said  as 
by  an  uneasy  determination  that  I  should  not  discuss 
that  phase  of  the  question. 

I  believe  the  result  of  the  debate  was  beneficial  in 
that  it  attracted  national  attention  to  a  controversy 
which  cannot  be  settled  until  it  has  been  dealt  with 
out  of  the  combined  wisdom  of  a  nation  which  has 
intelligently  studied  the  problem  and  determined  the 
national  responsibility. 

Mr.  Gompers  came  to  the  debate  with  the  mis- 
taken assumption  that  my  speech  would  be  antago- 


96    THE  PARTY  OF  THE  THIRD  PART 

nistic  to  organized  labor.  He  never  abandoned  that 
assumption.  His  three  speeches  were  woven  around 
an  appealing  recital  of  the  history  of  organized  labor 
and  the  many  good  things  it  had  accomplished  for 
its  members.  When  he  did  venture  away  from  this 
secure  ground  long  enough  to  discuss  the  Kansas 
Industrial  Court  he  showed  unfamiliarity  with  it  and 
established  in  regard  to  it  many  erroneous  premises. 
It  is  my  judgment  that  the  writing  up  of  the  debate 
had  best  be  intrusted  to  some  one  whose  viewpoint 
would  be  dissociated  from  the  personal  side  of  the 
argument,  and  therefore  Mr.  Elmer  T.  Peterson, 
who  was  present  at  the  debate,  and  who  has  rendered 
indispensable  service  in  assisting  me  to  prepare  vari- 
ous chapters  in  the  book,  has  kindly  consented  to 
undertake  the  work. 

THE  CARNEGIE  HALL  DEBATE 
BY  ELMER  T.  PETERSON 

In  thinking  of  the  Allen-Gompers  debate  two  pictures  are 
indelibly  impressed  upon  my  mind.  One  is  that  of  a  two-room 
suite  in  the  Stilwell  Hotel,  Pittsburg,  Kansas,  which  for  two  or 
three  weeks  formed  the  executive  offices  of  the  state  of  Kansas. 

The  weather  was  bitterly  cold.  Down  in  the  lobby  a  number 
of  men  in  khaki  were  walking  about.  One  was  a  musician  of 
note  in  my  home  city — an  impresario,  if  you  please.  He  was 
there  as  a  member  of  the  National  Guard,  and  when  I  saw  him 
he  had  a  pistol  strapped  to  his  belt  and  was  carrying  a  small 
bucket  of  water  for  the  automobile  he  was  driving.  He  was 
acting  as  chauffeur  for  somebody  connected  with  the  supervision 
of  the  volunteer  mining. 

Up  in  the  northeast  corner  on  the  top  floor  was  the  executive 
office  of  Governor  Allen,  who  spent  half  the  time  in  the  office 


THE  CARNEGIE  HALL  DEBATE        97 

and  half  the  time  at  the  mines.  The  two  million  people  in 
Kansas  had  their  eyes  and  thoughts  on  that  office. 

There  was  a  telephone,  and  his  personal  secretary,  Mr.  L.  M. 
Hull,  was  busy  answering  calls.  The  office  was  in  the  coal 
business,  and  shipments  had  to  be  directed.  When  the  Governor 
and  his  secretary  both  happened  to  be  out  I  would  answer  the 
calls  as  best  I  could. 

There  was  a  little  cheap  table  in  one  of  the  rooms  which  served 
as  the  Governor's  desk.  Over  this  desk  passed  some  rather 
weighty  matters.  People  coming  in  for  a  conference  would  sit 
on  the  bed  if  there  were  not  enough  chairs. 

It  was  in  this  room  that  Governor  Allen  first  expounded  to  me 
his  theory  of  the  Industrial  Court. 

Now  another  scene. 

Again  there  was  a  two-room  hotel  suite  on  an  upper  floor. 
Mr.  Hull  was  there.  There  were  many  telephone  calls,  and  I 
helped  answer  them. 

It  was  five  months  later,  and  this  was  in  the  Waldorf-Astoria, 
in  New  York.  But  memory  persistently  reverted  to  the  little 
suite  in  the  Stilwell  Hotel,  Pittsburg,  Kansas. 

Samuel  Gompers,  president  of  the  American  Federation  of 
Labor,  had  just  come  from  Atlantic  City,  where  he  had  spent 
some  time  preparing  his  speech.  He  was  at  the  Strand  Hotel, 
New  York.  A  special  train  had  just  come  in  from  Kansas,  bear- 
ing Governor  Allen  and  about  one  hundred  of  his  supporters. 

There  was  something  of  a  stir,  even  in  sophisticated  New  York. 
A  scintillant  assemblage  of  writers,  labor  leaders,  and  publicists 
was  to  hear  the  debate  between  the  two  men.  The  stage  was  a 
marked  contrast  with  that  first  mentioned.  But  the  real  issue 
lay  in  the  suffering  and  the  raw  conflict  of  harsh  weapons,  back 
there  in  December,  when  the  keen  wind  was  blowing  and  the 
snow  was  sifting  into  the  cracks  of  the  windows  of  the  room  of 
the  Kansas  hotel.  The  debate  was  not  to  be  so  much  of  theories 
as  of  facts,  so  far  as  Governor  Allen  was  concerned.  And  laws 
come  out  of  facts  oftener  than  they  come  out  of  theories. 

When  I  reached  Carnegie  Hall  it  was  time  for  the  debate  to 
begin,  and  there  was  a  great  crowd  outside,  in  spite  of  the  fact 
that  the  newspapers  had  announced  that  there  would  be  no 
admission  except  by  free  tickets  allotted  in  advance.  A  squad 

7 


98    THE  PARTY  OF  THE  THIRD  PART 

of  bluecoats  held  the  people  in  check,  and  directed  those  who 
were  to  be  admitted. 

At  the  last  moment  the  garment  makers'  union,  two  or  three 
hundred  strong,  asked  for  the  privilege  of  standing  in  the  aisles, 
and  this  permission  was  granted.  Those  who  have  seen  the 
garment  makers  congregate  at  the  intersections  of  lower  Fifth 
Avenue  know  how  they  love  an  argument. 

I  sat  near  one  of  them  during  the  debate  and  talked  with  him 
at  the  close.  He  had  enthusiastically  applauded  Mr.  Gompers 
throughout  the  discussion,  but  he  wore  a  thoughtful  air  and  con- 
ceded that  it  was  a  fair  presentation  all  around.  The  audience 
was  quieter  at  the  close  than  it  was  in  the  fore  part  of  the  dis- 
cussion. The  reasonable-minded  union  man  seemed  to  realize 
that  the  Kansas  effort  was  sincere,  and  that  it  contained  no 
enmity  to  labor,  but  an  earnest  hope  for  a  better  day. 

There  was  sober  and  respectful  attention,  and  then  applause, 
from  all  parts  of  the  hall,  when  Governor  Allen  graphically  and 
eloquently  pictured  the  beginnings  and  the  progress  of  brother- 
hood, how  it  began  with  Calvary  and  continued  through  the 
centuries  to  the  deeds  of  Paul  and  Savonarola  and  Cromwell  and 
the  Pilgrims  and  Washington's  soldiers  and  Lincoln. 

"And  we  have  transplanted  brotherhood  to  this  God-blessed 
country,"  he  said.  "Four  generations  of  soldiers  have  given  up 
their  lives  for  it  until  we  have  planted  it  as  a  principle  of  leader- 
ship which  makes  us  all  to  believe  that  God  Almighty  means 
America  for  leadership. 

"It  is  going  to  depend  upon  the  success  which  we  make  as  just 
and  honest  Americans,  of  the  problems  of  government  and  prac- 
tical brotherhood  in  the  civilization  of  the  United  States  of 
America.  That  is  what  we  are  building  to  in  Kansas.  That  is 
what  the  Kansas  Court  of  Industrial  Relations  is.  It  means  that 
the  people  of  Kansas  again  are  trying  to  hold  up  to  the  nation 
a  remedy  that  will  bring  us  back  to  righteousness  of  peace  and 
justice. 

"The  message  I  desire  to  leave  to-night  is  that  the  highest 
purpose  of  the  Kansas  Industrial  Court  is  not  to  prosecute  labor 
or  to  prosecute  capital.  It  is  a  court  of  justice,  and  its  aim  is  to 
protect  labor  against  capital,  capital  against  labor,  and  the 
public  against  both  or  either  of  them. 


THE  CARNEGIE  HALL  DEBATE        99 

"I  believe  we  found  in  Kansas  a  just  solution.  Mr.  Gompers 
has  offered  you  no  relief  to-night.  His  remedy  for  war  is  more 
war.  My  remedy  for  it  is  peace  conditioned  upon  the  impartial 
judgment  of  the  righteous  and  responsible  government." 

In  his  closing  remarks  he  gave  the  assurance  that  eventually 
the  best  friends  of  the  law  would  be  the  union -labor  men 
themselves. 

It  seemed  to  me  that  the  attitude  of  the  organized-labor  con- 
tingent was  that  Governor  Allen's  argument  appealed  to  their 
heads  and  Mr.  Gompers's  appealed  to  whatever  of  deep-seated 
prejudices  they  had.  They  attended  the  debate  without  any 
intention  of  being  convinced  of  the  wisdom  of  the  new  plan, 
but  their  mental  defenses  were  overcome  in  unexpected  places. 
Their  loyalty  to  Mr.  Gompers  personally  was  unshaken,  but 
their  close  attention  showed  they  were  there  in  a  spirit  of  inquiry. 

The  personal  loyalty  shown  Mr.  Gonapers  was  attested  by 
hurricanes  of  applause  and  floral  tributes.  Such  cries  as,  "  Keep 
it  up,  Sam,"  greeted  him  as  he  made  especially  vigorous 
drives. 

Near  the  close  of  the  debate  the  newspaper  men  in  the  orches- 
tra pit  took  a  poll  and  gave  Governor  Allen  the  unanimous 
decision,  saying  that  he  had  presented  not  the  side  of  capital, 
but  the  side  of  the  public,  and  blazed  a  new  trail. 

The  debate  was  like  a  thunder  shower  on  a  muggy  day.  It 
seemed  to  aid  appreciably  in  clearing  the  air.  Probably  this 
was  the  first  time  that  a  man  standing  high  in  national  political 
circles  had  talked  so  frankly  to  organized  labor  regarding  its 
deficiencies.  And  the  labor  men  did  not  seem  altogether  to  resent 
it.  The  obvious  kindliness  that  stood  back  of  the  Governor's 
daring  statements  gave  the  impression  of  sincerity  and  de- 
pendability. 

The  debate  produced  a  reflex  in  the  national  conventions. 
Both  the  old  parties  showed  by  their  platforms  that  they  had 
reacted  to  the  proposal  of  protecting  the  public  against  indus- 
trial warfare.  The  Prohibition  party  platform  used  the  Indus- 
trial Court  idea  even  to  the  point  of  phraseology. 

It  was  a  new  note  in  American  politics.  The  proposition  had 
taken  a  novel  and  unexpected  stand. 

Samuel  Gompers,  the  undisputed  chief  of  American  organized 


ioo  THE  PARTY  OF  THE  THIRD  PART 

labor  during  all  its  existence  as  a  national  entity,  found  that  his 
weapons  were  slashing  the  air  when  he  met  Governor  Allen  in 
Carnegie  Hall. 

The  veteran  of  many  a  platform  joust  came  prepared  to  de- 
liver the  old-time  attack  against  an  old-time  foe,  and  he  found 
that  the  old-time  foe  was  not  there  at  all.  His  opponent  was  not 
representing  capital,  but  the  general  public,  and  used  the  argu- 
ments of  the  public.  When  Governor  Allen  came  to  the  crux  of 
the  argument,  which  was  a  question  as  to  the  rights  of  the  pub- 
lic, the  labor  chief  was  thrown  off  his  balance.  He  paced  the 
floor  uneasily,  as  if  groping  for  a  ground  that  he  had  neglected 
to  prepare  in  advance. 

The  atmosphere  was  charged  with  potential  electromotive 
force.  The  voltage  was  high  at  the  opposite  poles  and  an  indis- 
creet touch  might  have  short-circuited  the  whole  affair  in  ex- 
plosive fashion.  The  intensity  was  heightened  by  the  curious 
fact  that  the  antagonistic  groups  were  comparative  strangers, 
and  also  by  the  fact  that  the  reasons  for  antagonism  were  not  as 
clear  as  they  would  be  if  Mr.  Gompers  were  meeting  some  repre- 
sentative of  capital. 

If  Carnegie  Hall  had  been  crowded  with  representatives  of 
capital  on  one  side,  and  representatives  of  labor  on  the  other, 
there  would  simply  have  been  the  same  old  sullen  opposition; 
the  same  old  familiar  clashes  over  collective  bargaining,  closed 
shop,  open  shop,  length  of  working  days,  and  what  not;  the 
same  old  smoldering,  but  unexcited,  spirit  of  dog  eat  dog.  But 
the  capitalists  were  absent.  There  were  strange  faces. 

A  special  train  had  just  come  in  from  Kansas  that  day,  and 
to  the  best  of  the  writer's  knowledge  and  belief  there  was  not  a 
single  capitalist  aboard.  And  with  the  exception  of  two  or  three 
there  was  not  a  man  on  the  train  whose  name  could  be  found  in 
a  roster  of  the  fifty  best-known  politicians  in  Kansas.  Middle- 
class  business  and  professional  men  predominated.  There  was 
a  goodly  sprinkling  of  farmers  and  farm  owners.  And  in  view- 
point, at  least,  the  Kansas  contingent  was  a  pretty  fair  sample 
of  Governor  Allen's  sympathizers. 

Inasmuch  as  the  public's  resentment  against  big  and  vital 
strikes  is  actually  more  pronounced  than  that  of  the  capitalist, 
even  if  more  repressed,  the  raw  issue — if  public  welfare  versus 


THE  CARNEGIE  HALL  DEBATE      101 

the  special  organized  interest — was  here  sharply  dramatized  for 
the  first  time. 

Judge  Alton  B.  Parker,  who  presided,  sensed  the  currents 
below  the  surface  when  he  introduced  the  speakers. 

"Two  great  leaders  of  men  are  to  speak  through  you  to-night 
to  more  than  one  hundred  millions  of  people,"  he  said.  "What 
they  have  to  say  will  command  at  the  outset  wider  consideration 
by  both  the  press  and  the  people  than  the  famous  Lincoln- 
Douglas  debate.  This  is  so,  first,  because  all  of  the  people  of 
the  United  States  are  interested  at  this  moment  in  the  questions 
which  they  are  to  discuss,  and  second,  for  the  reason  that  in 
addition  to  the  great  skill  of  the  debaters  they  have  had  for  a 
long  time  since  a  record  of  work  that  demonstrates  their  faith 
in  the  positions  which  they  take  to-night." 

The  audience  sat  respectfully  and  expectantly  through  Mr. 
Gompers's  opening  speech.  It  applauded  the  recital  of  labor's 
honorable  triumphs.  It  liked  to  hear  of  the  abolition  of  child 
labor  and  the  winning  of  humanitarian  conditions. 

"The  free  man's  ownership  of  himself  and  his  labor  implies 
that  he  may  sell  it  to  another  or  withhold  it,"  said  the  veteran 
labor  chief.  Certainly — the  crowd  agreed  with  that.  The 
audience  believed  that  a  man  may  work  even  if  others  do  not 
want  him  to  work,  or  he  may  quit  even  if  others  do  not  want 
him  to  quit. 

"Capital  is  that  which  one  has — labor  is  that  which  one  is," 
he  said,  and  the  people  cheered  the  aphorism.  He  recited  the 
history  of  labor  and  its  winning  fight  for  reforms  and  better- 
ments. He  bitterly  arraigned  what  he  said  was  a  proposal  to 
make  it  a  crime  to  quit  work.  It  was  against  the  Thirteenth 
Amendment,  he  said.  He  pleaded  eloquently  for  individual 
liberty. 

"  We  are  at  the  parting  of  the  ways  in  the  great  controversies 
which  are  now  occupying  the  mind  of  the  people,"  he  said. 
"On  the  one  hand  we  have  the  great  constructive  movement 
for  progress,  for  civilization,  and  with  all  the  tasks  these  impose, 
and  on  the  other  hand  we  have  those  who  are  leading  the  course 
of  reaction,  of  injustice,  of  tyranny. 

"The  free  man's  ownership  of  himself  and  his  labor  implies 
that  he  may  sell  it  to  another  or  withhold  it;  that  he  may,  with 


102  THE  PARTY  OF  THE  THIRD  PART 

others  similarly  situated,  sell  their  labor  power  or  withhold  it; 
that  no  man  has  even  an  implied  property  right  in  the  labor  of 
another;  that  free  men  may  sell  their  labor  under  the  stress  of 
their  needs,  or  they  may  withhold  it  to  obtain  more  advantage- 
ous returns.  Any  legislation  or  court  construction  dealing  with 
the  subject  of  organizations,  corporations,  or  trusts  which  curtail 
or  corner  the  products  of  labor  can  have  no  true  application  to 
the  association  of  free  men  in  the  disposition  or  withholding  of 
their  labor  power. 

"The  attempt  to  deny  free  men,  by  any  process,  the  right  of 
association,  the  right  to  withhold  their  labor  power  or  to  induce 
others  to  withhold  their  labor  power,  whether  these  men  be 
engaged  in  an  industrial  dispute  with  their  employers,  or  whether 
they  be  other  workmen  who  have  taken  the  places  of  those 
engaged  in  the  original  dispute,  is  an  invasion  of  man's  owner- 
ship of  himself  and  of  his  labor  power,  and  is  a  claim  of  some 
form  of  property  right  in  the  workmen  who  have  taken  the 
places  of  strikers,  or  men  locked  out. 

"If  the  ownership  of  free  men  is  vested  in  them,  and  in  them 
alone,  they  have  not  only  the  right  to  withhold  their  labor  power, 
but  to  induce  others  to  make  common  cause  with  them,  and  to 
withhold  theirs  that  the  greatest  advantage  may  accrue  to  all. 
It  further  follows  that  if  free  men  avail  themselves  of  the  lawful 
right  of  withholding  their  labor  power,  they  have  the  right  to 
do  all  lawful  things  in  pursuit  of  that  lawful  purpose.  And 
neither  courts,  injunctions,  nor  any  other  processes  have  any 
proper  application  to  deny  to  free  men  these  lawful,  constitu- 
tional, natural,  and  inherent  rights. 

"The  Clayton  Act,  declaring  that  the  labor  of  a  human  being 
is  not  a  commodity  or  article  of  commerce,  put  these  principles 
on  the  United  States  statute  books. 

"There  is  a  common  error  in  the  minds  of  a  large  number  of 
our  people,  and  the  peoples  of  the  whole  world,  who  confuse  the 
terms  'labor'  and  'capital'  as  being  in  exactly  equal  positions 
toward  each  other.  The  fact  of  the  matter  is  that  capital  is  the 
product  of  labor.  The  immortal  Lincoln  said:  'Capital  is  the 
fruit  of  labor  and  could  not  exist  if  labor  had  not  first  existed. 
Labor,  therefore,  deserves  much  the  higher  consideration  1'" 

Mr.  Gompers  was  reading  the  primer  of  organized  labor.    He 


THE  CARNEGIE  HALL  DEBATE      103 

was  using  the  traditional  argument*  against  the  oppression  of 
employing  capital.  Either  he  misunderstood  the  general  public 
or  he  was  employing  the  tactics  used  by  the  political  speaker 
who,  when  cornered  in  an  argument,  launches  into  a  fervid  per- 
oration on  the  Stars  and  Stripes. 

Whenever  he  made  an  eloquent  point  on  the  old  issues  he  was 
greeted  with  enthusiastic  applause.  He  warmed  up  to  his  task 
apparently  with  the  feeling  that  he  was  accomplishing  what  he 
desired. 

The  adherents  of  Governor  Allen  were  sitting  back  in  their 
chairs,  knowing  that  the  real  clash  was  yet  to  come. 

"Then  we  hear  much  about  capital  and  labor  and  the  'public,' 
as  if  the  workers  were  not  a  part  of  the  public,"  said  Mr.  Gom- 
pers,  derisively.  "I  agree  that  strikes  and  cessations  of  work 
are  uncomfortable  and  make  for  inconvenience,  but,  my  friends, 
there  are  some  things  worse  than  strikes,  there  are  some  things 
worse  than  cessations  of  labor,  and  among  them  is  a  degraded 
manhood."  With  such  phrases  he  sought  to  smother  the  issue 
which  he  subconsciously  seemed  to  feel  was  coming  at  him, 
though  he  was  not  sufficiently  familiar  with  the  Kansas  law  to 
realize  in  what  form  it  was  likely  to  come. 

"A  people  intelligent,  independent,  and  virile,  with  life, 
activity,  and  aspirations,  are  always  the  vanguard  for  progress 
and  civilization."  He  went  on:  "We  know  the  pangs  that 
motherhood  undergoes,  but  because  of  that  pain  and  travail  is 
there  anyone  who  would  advocate  that  this  wonderful  present 
and  future  of  motherhood  and  fatherhood  shall  cease? 

"In  every  country  on  the  face  of  the  globe,  and  in  all  eras, 
there  have  been  the  incidents  and  the  vents  of  struggle:  struggle 
for  expression,  struggle  for  a  better  life,  a  happier  day.  All  the 
efforts  of  old  to  suppress  by  law,  by  edict,  the  right  of  the  toilers 
to  express  themselves,  and  the  struggle  for  their  uplift,  have 
been  in  vain.  The  law  attempted  to  be  enacted,  whether  in  the 
United  States  Congress,  or  by  any  state  within  the  Union,  will 
find  the  exact  fate  of  the  laws  and  edicts  and  decrees  of  sover- 
eigns and  parliaments  and  judges  in  the  past. 

"Mark  you  this  fact.  The  charter  of  the  American  Republic, 
the  cause  for  which  the  Colonists  declared  the  independence  of 
the  Thirteen  Colonies,  was  the  inalienable  right  to  life,  the  in- 


io4  THE  PARTY  OF  THE  THIRD  PART 

alienable  right  to  liberty,  and  yet  after  a  hundred  and  forty 
years  and  more  there  rise  up  men  who,  in  their  impatience  with 
humankind,  want  seriously  and  by  law  to  make  it  a  criminal 
offense  to  exercise  liberty  on  the  part  of  the  working  people. 

"Liberty!  What  is  liberty?  The  right  to  own  oneself,  that 
he  may  do  with  his  powers  what  best  conserves  his  interests  and 
his  welfare.  The  Thirteenth  Amendment  to  the  Constitution  of 
the  United  States  gave  sacred  guaranties  for  the  liberty,  for  the 
future  liberty,  of  the  chattel  slave — that  is,  that  he  nor  any 
other  person  in  the  United  States  or  in  any  part  under  its  juris- 
diction, should  be  forced  into  a  form  of  slavery  or  involuntary 
servitude  except  as  a  punishment  for  crime  of  which  the  party 
should  be  duly  convicted. 

"The  difference  between  a  slave  and  a  free  man  is  that  the 
slave  must  work  when  his  master  or  owner  directs  and  wills. 
The  free  man  may  stop  his  work  whatever  consequences  or 
suffering  may  be  involved.  The  right  of  a  man  to  dispose  of 
himself,  of  his  labor,  and  his  labor  power  has  been  set  forth  in 
a  Supreme  Court  decision,  an  opinion  read  by  the  then  Associate 
Justice  of  the  Supreme  Court,  Mr.  Hughes,  in  which  the  principle 
is  clearly  set  forth  that  an  involuntary  servitude  is  any  control 
by  which  the  personal  services  of  a  human  being  are  disposed  of 
or  coerced  for  any  other  benefit.  It  does  not  mean  that  a  man 
must  be  himself  in  servitude  so  that  the  master  can  say  to  him, 
'  You  shall  not  leave  here,  or  you  must  leave  here,'  but  it  is  any 
control  by  which  his  personal  services  are  disposed  of  without  his 
will,  the  coercion  meaning  not  by  the  lash  of  the  whip,  but  co- 
ercion by  the  operation  of  the  state. 

"In  the  United  States  the  spirit  of  unrest  finds  its  expression 
in  the  workers  organizing  upon  the  American  idea,  upon  the 
American  principle  of  organization  by  nation,  by  state,  by  local- 
ity, and  all  based  upon  the  sovereignty  of  the  individual. 

"In  the  United  States  we  organize  our  unions  and  federate 
them  in  state  and  national  bodies.  In  the  United  States  we 
undertake,  by  negotiations  with  our  employers,  to  bring  some 
light  into  the  life  and  the  work  of  the  toilers.  And  when  we 
cannot  agree,  when  the  employers  and  the  workers  fail  to  agree, 
what  does  it  mean?  A  cessation  of  work?  A  strike?  It  means 
that  the  old  conditions  and  terms  for  the  purchase  and  sale  of 


THE  CARNEGIE  HALL  DEBATE      105 

labor  power  have  proven  unsatisfactory  either  to  one  or  the 
other  side,  and  each  undertakes  to  do  that  which  he  has  the  law- 
ful right  to  do — endeavor  to  persuade  the  other  to  his  terms. 
And  when  the  strike  or  lockout  is  over  the  new  conditions  and 
terms  for  the  agreement  upon  which  industry  shall  be  resumed 
between  them  and  carried  on  for  a  period  of  a  year  to  five  years, 
until  there  is  a  new  want  among  employers  or  a  new  desire  and 
hope  among  the  employees." 

Adroitly  the  labor  leader  strove  to  shift  the  burden  of  proof 
to  his  opponent  by  stressing  the  sufferings  of  labor  and  its  effort 
to  keep  itself  free  from  oppressive  restraints.  He  warmed  him- 
self with  his  theme. 

"The  right  to  own  oneself,  the  right  to  be  free  from  a  court's 
direction  or  a  judge's  direction,  when  that  normal  and  natural 
right  to  stop  work  is  exercised,  not  to  commit  crime,  not  to 
commit  overt  acts,  but  to  stop  work — the  right  of  a  man  to  own 
himself,  to  work  or  not  to  work — is  his  right,  and  not  the  right 
of  government,  nor  states,  nor  courts.  It  is  man's;  it  is  the 
human  right,  from  which  there  can  be  no  departure  without 
taking  away  the  freedom,  the  liberty,  and  the  natural  expression 
of  the  human.  That  is  the  thing  for  which  we  are  contending 
and  will  contend,  no  matter  what  may  come." 

When  he  finished  he  was  greeted  with  an  ovation,  and  was 
presented  with  a  huge  bouquet  of  flowers.  With  a  surprisingly 
strong  voice  and  vigorous  presentation  the  labor  chief  had 
sounded  the  familiar  tocsins  and  alarms  of  the  unions.  The  labor 
leaders  greeted  him  almost  with  reverence. 

It  was  an  interesting  psychological  study.  Mr.  Gompers  was 
not  talking  to  the  American  public.  He  was  scarcely  talking 
to  the  people  in  the  hall,  except  as  he  knew  them  to  be  inter- 
mediaries and  carriers  of  his  message. 

He  was  talking  to  his  own  followers,  and  he  was  saying  the 
things  he  knew  they  would  like  to  have  him  say.  He  was  the 
old  champion,  interposing  his  gallant  "stub  of  a  sword,"  as  he 
himself  put  it,  between  the  old  way  and  the  new,  and  he  sought 
to  preserve  the  old  way — the  only  hope  of  the  primitive  rough- 
and-tumble  unionism — the  right  to  strike. 

As  he  stalked  sturdily  to  his  seat  he  looked  impassively  trucu- 
lent and  quite  sure  of  his  appeal.  His  personality,  his  gray  hair, 


106  THE  PARTY  OF  THE  THIRD  PART 

and  his  picturesquely  rugged  face  made  a  deep  impression.  If 
his  opponent  had  been  a  spokesman  for  capital  he  would  have 
had  to  start  an  uphill  climb. 

But  the  man  who  arose  to  take  up  the  argument  was  a  man 
who  was  an  actual  handworker,  without  resources,  struggling 
through  college,  at  a  time  long  after  Mr.  Gompers  had  forsaken 
the  shop  for  the  office.  Governor  Allen  was  not  speaking  for 
the  party  of  the  first  part  or  the  party  of  the  second  part,  but  for 
the  party  of  the  third  part.  It  was  the  public  he  represented, 
and  the  arguments  he  used  were  not  the  stock  arguments  of 
capital,  but  the  new  plea  for  the  unorganized  majority  and  for 
the  laborer  in  the  ranks. 

Graphically  and  rapidly  he  sketched  the  events  of  the  Kansas 
coal  strike.  He  told  of  the  impending  suffering  from  cold  in 
midwinter.  He  told  of  the  stubborn  union  boss,  Howat,  who 
bowed  his  neck  against  all  humanitarian  efforts  to  bridge  over 
the  fuel  famine.  He  told  of  the  state  receivership  and  the  call 
for  volunteers.  He  told  of  the  young  soldiers  who  led  the  move- 
ment. He  told  of  the  boycotting  of  the  Pittsburg  hospital  by 
the  unions,  and  the  threat  of  death  by  freezing,  to  the  inmates. 
He  told  of  the  poor  washerwoman  who  was  threatened  with  dis- 
aster because  she  washed  clothes  for  the  volunteers.  And  then 
he  told  of  Guffey,  the  union  miner  who  determined  to  work  in 
spite  of  the  union  boss's  orders,  to  save  his  family  from  starva- 
tion, and  how  the  union  therefore  suspended  him  for  ninety-nine 
years  and  made  grievous  threats  against  him.  "There's  your 
personal  liberty,"  he  said,  in  a  sudden  climax,  hurling  the  favorite 
union  phrase  back  at  Mr.  Gompers. 

One  could  almost  imagine  the  union  leaders'  surprised  "Ugh!" 
as  this  blow  struck  home.  There  was  an  instant  of  shocked 
silence,  and  then  a  chorus  of  "boos"  and  hisses. 

Now  the  fight  was  on.  The  American  Federation  representa- 
tives in  the  hall  began  to  see  just  where  the  conflict  lay.  They 
were  leaders;  the  argument  was  directed  toward  them,  not  at 
the  unions.  It  hurt.  They  immediately  saw  they  were  on  the 
defensive.  They  were  hearing  a  new  kind  of  a  labor  speech. 

Mr.  Gompers  used  the  didactic,  academic  style  of  argument. 
Governor  Allen  used  the  narrative,  human-interest  style  punc- 
tuated occasionally  by  thrusts  of  sarcasm  and  living  logic. 


THE  CARNEGIE  HALL  DEBATE      107 

The  debate  drew  away  from  the  regions  of  academic  argument 
and  became  a  contrast  of  two  currents  of  human  interest. 

As  soon  as  it  was  seen  that  Mr.  Gompers  would  have  to  aban- 
don his  somewhat  detached  attitude  and  recognize  his  adver- 
sary in  a  personal  way,  the  hearers  became  more  turbulent  and 
keenly  interested.  Applause  arose  in  spontaneous  waves  at 
each  telling  point. 

Governor  Allen  developed  his  theme  to  a  climax,  bringing  in 
the  arguments  as  they  appear  in  this  book. 

"We  have  not  taken  from  labor  the  right  to  quit  work,"  he 
said,  in  another  flash  of  sarcasm.  "We  have  only  taken  away 
from  the  labor  leader  his  divine  right  to  order  men  to  quit  work." 

There  was  another  chorus  of  "boos"  and  hisses  from  those 
who  were  hit.  There  were  wild  cheers  from  his  supporters. 

The  speaker  smiled  amiably  and  waited. 

"Now,  we  will  just  take  that  as  an  expression  from  both  sides. 
I  know  just  how  you  feel.  If  you  will  permit  me,  I  will  go  on." 

With  two  or  three  minutes  to  spare,  at  the  end  of  his  first 
speech,  he  went  over  to  a  table,  hunted  around  a  bit,  and  came 
back  to  the  front  of  the  stage  with  a  sheet  of  paper. 

"I  would  like  most  respectfully  to  ask  President  Gompers  if 
he  will  answer  a  question,"  he  said. 

The  audience  pricked  up  its  ears.  He  read,  slowly  and  dis- 
tinctly: 

"'When  a  dispute  between  capital  and  labor  brings  on  a  strike 
affecting  the  production  or  distribution  of  the  necessaries  of  life, 
thus  threatening  the  public  peace  and  impairing  the  public 
health,  has  the  public  any  rights  in  such  a  controversy,  or  is  it 
a  private  war  between  capital  and  labor?'  If  you  answer  this 
question  in  the  affirmative,  Mr.  Gompers,  how  would  you  pro- 
tect the  rights  of  the  public? 

"And,  in  addition,  I  wish  him  to  define,  if  he  will,  who  had 
the  divine  right  to  forbid  the  switchmen  to  strike  in  their  out- 
law strike?  Who  controls  this  divine  right  to  quit  work?" 

He  sat  down,  and  the  audience  went  into  a  long  and  exuberant 
wave  of  applause.  Things  were  getting  highly  interesting. 
What  would  Gompers  say?  How  would  he  answer  those  ques- 
tions? Everybody  craned  his  neck  as  the  stocky  little  man  in 
the  long  frock  coat  arose  stiffly  for  his  second  speech. 


io8  THE  PARTY  OF  THE  THIRD  PART 

He  paced  back  and  forth.  Visibly  irritated  and  uneasy,  he 
seemed  to  feel  that  the  solid  ground  had  slipped  from  under 
him. 

"  It  is  one  of  the  most  difficult  tasks  for  one  to  attempt  to  keep 
up  with  a  statement  of  facts  or  alleged  facts  and  expect  another 
to  answer,"  he  began.  "The  Governor  has  taken  up  the  last 
minute  of  his  time  to  read  a  question.  If  1  had  time  I  would 
answer  the  Governor." 

"Answer  it,  answer  it,"  urged  several  voices,  encouragingly, 
from  the  audience.  There  was  a  confusion  of  cries,  intermingled 
with  laughters  and  cheets.  The  speaker  became  nettled. 

"I  will  prove  it  to  you,"  he  shouted,  warming  up,  "if  I  live 
long  enough  to  prove  to  you,  that  I  can!  Let  me  say  this,  how- 
ever, that  an  innocent  child  can  ask  more  questions  of  his 
father—" 

"Answer  it,  answer  it,"  persisted  the  voices  from  the  gallery. 

It  was  a  new  situation.  The  veteran  labor  leader  seemed  to 
feel  hurt. 

"The  Governor's  adherents  here  are  made  up  of  ladies  and 
gentlemen,"  he  said,  with  implied  reproof.  "I  shall  try  to  an- 
swer the  Governor's  statements  as  best  I  can,  and  I  assure  you 
of  an  answer  if  I  have  the  time,  even  this  evening." 

Governor  Allen's  supporters  in  the  audience  exchanged  know- 
ing looks,  and  Mr.  Gompers  proceeded  to  discuss  some  other 
phase  of  the  labor  question. 

Mr.  Gompers  did  not  answer  the  question  that  night.  He 
issued  a  statement  ten  days  later,  which  purported  to  be  an 
answer.  But  in  actuality  he  has  not  replied  to  the  question  up 
to  the  time  this  was  written,  late  in  November,  1920.  His  state- 
ment was  a  halting  evasion.  He  will  not  reply  unless  he  is  pre- 
pared to  relinquish  his  leadership. 

Why? 

Because  a  clear-cut  affirmative  answer,  together  with  some 
plan  for  protecting  the  public,  will  offend  the  radicals,  who  do 
not  concede  that  there  are  any  rights  except  those  of  the  so-called 
proletariat,  no  matter  what  the  proletariat  desires.  A  negative 
answer  would,  of  course,  serve  to  alienate  every  believer  in  the 
American  form  of  government,  and  render  outlaw  Mr.  Gom- 
pers's  whole  sphere  of  influence. 


THE  CARNEGIE  HALL  DEBATE      109 

Governor  Allen  answered  the  question  simply  by  citing  the 
American  Constitution,  which  makes  the  rights  of  the  public 
paramount  to  every  special  interest. 

Why  did  Mr.  Gompers  stumble  at  this  question? 

When  he  stumbled  and  hesitated  organized  labor  everywhere 
was  by  him  unjustly  put  on  the  defensive.  His  failure  to  answer 
put  organized  labor  in  the  wrong  light.  It  began  a  new  chapter 
in  American  union  history.  His  failure  was  an  unjust  aspersion 
upon  his  whole  organization,  for  it  meant  an  unwillingness  to 
acknowledge  the  sovereignty  of  the  unorganized  majority.  It 
meant  an  assumption  of  special  privilege  by  an  organized 
minority — an  assumption  heretofore  attributed  to  capital  by 
labor. 

Regardless  of  titles,  regardless  of  disagreement  as  to  the  sub- 
ject of  the  debate,  the  discussion  was  put  on  a  certain  definite 
plane  at  this  crucial  moment.  The  issue  was  definitely  joined. 

Mr.  Gompers  contended  that  the  right  to  quit  work  was 
identical  in  principle  whether  it  applied  to  one  man  acting  as  a 
free  agent  and  without  regard  to  time  or  circumstance,  or  a 
thousand  men  acting  in  concert,  under  organization  orders,  even 
if  their  action  controlled  the  production  of  necessities.  He  drew 
no  distinction. 

Governor  Allen  contended  that  the  action  of  a  thousand  men 
was  different — that  it  was  precisely  the  opposite  of  an  expression 
of  personal  liberty  because  it  implied  control  by  a  central  body 
or  leader — that  it  often  interfered  with  the  paramount  rights  of 
the  public  and  the  individual  liberty  of  the  worker. 

Mr.  Gompers  claimed  that  the  public  could  well  afford  to 
take  chances  with  the  unions  for  the  securing  of  necessities,  and 
that  if  they  wanted  to  avoid  strikes  or  get  better  results  they  had 
better  work  on  the  employers  and  capitalists — in  other  words, 
he  maintained  in  effect  that  the  unions  could  do  no  wrong,  all 
the  wrong  coming  from  capital's  side. 

Governor  Allen  took  the  stand  that  union  leaders,  who  seem 
to  have  a  lot  to  say  about  bringing  on  strikes,  are  just  as  apt  to 
be  wrong  as  anybody  else. 

Mr.  Gompers  proceeded  upon  the  theory  that  the  union's 
contentions  presuppose  a  set  of  overshadowing  humanitarian 
rights  superior  to  any  right  the  public  may  have. 


no  THE  PARTY  OF  THE  THIRD  PART 

Governor  Allen  proceeded  upon  the  theory  that  the  safety  of 
the  people  is  the  supreme  law. 

Mr.  Gompers  was  unable  to  see  any  alternative  for  the  strike. 
The  strike  was  the  only  conceivable  righter  of  industrial  wrongs 
that  seemed  to  him  effective  or  worth  while. 

Governor  Allen  argued  that  a  just  and  impartial  government 
was  better  able  to  insure  fair  treatment  than  any  special  form 
of  physical  or  economic  pressure  applied  by  a  minority. 

Mr.  Gompers's  claim  for  the  merits  of  the  strike  was  what  it 
had  done  for  organized  labor. 

Governor  Allen's  claim  was  that  the  strike  had  wrought  more 
injury  to  the  public  than  it  had  done  good  for  labor,  and  that  a 
large  share  of  the  credit  for  labor's  better  condition  was  due  to 
the  generally  enlightened  public  opinion  of  the  country,  expressed 
through  legislation  even  where  labor  unions  were  not  strong 
enough  to  accomplish  things  by  their  own  might.  He  also 
questioned  the  good  that  the  strike  had  done  for  labor  itself. 

Mr.  Gompers  finally  made  a  great  and  crowning  mistake. 
Owing  to  the  attention  given  to  other  matters  this  false  step 
seemed  to  escape  general  notice.  He  adduced  the  instance  of 
the  German  workers  when  Von  Kapp  threatened  the  re-estab- 
lishment of  a  monarchy.  He  defended  the  use  of  a  strike  to 
accomplish  a  political  end.  He  denounced  the  Kansas  law  on 
the  ground  that  it  would  prevent  American  workers  from  striking 
to  head  off  a  change  in  our  form  of  government. 

Those  who  had  given  some  study  to  the  subject  of  direct 
action  gasped.  Had  Gompers  become  a  direct  actionist?  Did 
he  defend  the  use  of  the  strike  as  a  political  weapon  ?  Certainly 
he  did. 

It  appeared  that  "the  toiler's  right  to  live"  was  not  the  only 
thing  Mr.  Gompers  wanted  to  safeguard  by  the  strike  weapon, 
after  all.  He  proposed,  inferentially,  at  least,  that  the  strike 
be  used  to  accomplish  governmental  ends.  Perhaps  he  was 
thinking  of  the  Adamson  law.  He  forgot  that  in  America  the 
right  of  majority  rule  by  ballot  is  forever  safeguarded,  and  that 
no  conceivable  contingency  can  justify  the  employment  of  any 
political  weapon  except  the  ballot.  He  forgot  that  no  principal 
of  Americanism  can  permit  the  use  of  economic  pressure  as  a 
means  of  directing  the  course  of  government  either  toward  or 


THE  CARNEGIE  HALL  DEBATE   in 

away  from  monarchy.  He  forgot  that  direct  action  to  forestall 
a  governmental  change  is  equivalent  to  direct  action  to  bring 
about  a  governmental  change.  His  statement  was,  in  effect,  a 
sanction  of  the  strike  against  the  government. 

And  there  was  another  matter  in  the  background  of  the 
debate,  behind  the  scenes,  wherein  the  strike  did  not  involve 
"the  toiler's  right  to  live."  Mr.  Gompers  had  to  "front"  for 
this,  although  it  was  in  the  background. 

That  was  the  matter  of  the  nonunion  fish. 

What  is  a  nonunion  fish? 

A  nonunion  fish  is  one  that  is  left  to  rot  while  the  union  fish 
goes  on  its  way  to  be  eaten  by  the  supposedly  sovereign  American 
citizen. 

Now,  the  nonunion  fish  was  not  seen  at  Carnegie  Hall.  But 
his  ghost  was  at  the  banquet.  The  impolite  smell  of  him  lurked 
over  Manhattan  Island. 

The  strike  of  the  New  York  freight  handlers,  then  in  progress, 
formed  a  background  of  grim  and  sardonic  actuality  that  did 
not  belong  in  Mr.  Gompers's  front  parlor  or  his  showcase.  It 
did  not  harmonize  with  his  poetic  portrayal  of  unionism.  But 
it  illustrated  so  perfectly  what  Governor  Allen  was  arguing  that 
it  must  be  brought  into  the  picture.  The  Kansas  executive 
had  the  material  in  his  pile  of  reference  matter,  but  lack  of  time 
prevented  its  use. 

The  principal  contention  in  this  strike,  involving  union  truck- 
men, lightermen,  freight  handlers,  and  other  transportation 
laborers,  was  that  they  would  not  handle  products  which  at  any 
time  had  been  handled  by  nonunion  labor. 

Fish  coming  from  far-off  coast  villages  were  scrutinized  as  to 
origin.  Fish  caught  by  union  men  were  sent  on  to  the  consumer. 
Fish  caught  by  nonunion  men  were  shunted  aside  and  delayed 
until  they  rotted.  The  consumer  ultimately  paid  the  bill,  and 
one  of  the  sources  of  his  food  supply  was  endangered.  The 
unions  were  trying  to  dictate  the  terms  of  life  to  the  unorganized 
public. 

Manhattan  Island,  with  its  four  or  five  million  people,  is 
hemmed  in  by — transportation.  So  is  every  other  community 
not  capable  of  self-support,  but  the  case  of  Manhattan  stands 
out  particularly  because  of  the  tremendous  congestion  of  life 


ii2  THE  PARTY  OF  THE  THIRD  PART 

and  the  complexity  of  the  transportation  arteries  of  bridges, 
tubes,  ferries,  and  freighters,  which  arteries  are  under  the  finger 
of  perhaps  one  hundred  thousand  organized  unionists  and  capi- 
talists. With  the  unions  extending  their  functions  to  the  control 
of  far-flung  activities  and  threatening  stoppage  of  transporta- 
tion if  certain  demands  are  not  met,  Manhattan  is  at  the  mercy 
of  a  minority  organization  of  special  interests — "special  privi- 
lege"— with  no  law  to  prevent  the  starvation  of  the  four  or  five 
million. 

It  is  no  wonder  the  crucial  question  about  the  rights  of  the 
public  was  not  answered  by  Mr.  Gompers. 

When  his  hecklers  in  the  audience  for  the  third  time  pressed 
him  to  reply,  saying,  "Why  don't  you  answer  it?"  he  lost  his 
temper,  and  blazed  forth,  "Why  don't  you  shut  up?" 

He  did  not  answer  the  other  question,  either.  Withdrawing 
from  the  uncomfortable  atmosphere  of  such  controversial  mat- 
ters, at  the  last  he  betook  himself  to  the  shelter  of  his  first  atti- 
tude— that  of  the  heroic  champion  of  labor.  There  was  some- 
thing akin  to  pathos  about  it. 

He  was  again  appealing  to  his  followers  for  their  personal 
admiration.  He  finished  the  debate  suggestively,  as  I  shall  finish 
this  story  of  it,  by  the  use  of  a  poem.  He  used  it  for  reasons  that 
are  sufficient  to  himself.  It  may  help  to  explain  his  attitude 
toward  the  debate  and  throw  some  light  on  the  psychology  of 
Carnegie  Hall  that  evening.  Here  is  the  poem: 

More  than  half  beaten,  but  fearless, 

Facing  the  storm  and  the  night,  reckless  and  recline, 

But  tearless, 

Here  in  the  full  of  the  fight 
I  who  bow  not  but  before  thee. 

God  of  the  fighting  clan, 
Lifting  my  fists  I  implore  thee 

Give  me  the  heart  of  a  man. 

What  though  I  live  with  the  winners. 

Or  perish  with  those  who  fall, 
Only  the  cowards  are  sinners, 

Fighting  the  fight  is  all. 


THE  CARNEGIE  HALL  DEBATE 

Strong  is  my  foe,  he  advances, 
Snapped  is  my  blade,  O  Lord. 

See  the  proud  banners  and  lances. 
Oh,  spare  me  this  stub  of  a  sword. 

Give  me  no  pity  nor  spare  me, 
Calm  not  the  wrath  of  my  foe. 

See  where  he  beckons  to  dare  me; 
Bleeding,  half  beaten,  I  go. 

Not  for  the  glory  of  winning, 
Not  for  the  fear  of  the  night, 

Shunning  the  battle  is  sinning. 
Oh,  spare  me  the  heart  to  fight. 

Red  is  the  mist  about  me, 

Deep  is  the  wound  in  my  side. 

Coward,  thou  criest  to  flout  me. 
Oh,  terrible  foe,  thou  hast  lied. 

Here  with  the  battle  before  me, 

God  of  the  fighting  clan, 
Grant  that  the  woman  who  bore  me 

Suffered  to  suckle  a  man. 


VII 

MR.    GOMPERS'S    SUPPLEMENTARY   STATEMENT 

A  OUT  ten  days  after  the  Carnegie  Hall  de- 
bate Samuel  Gompers  issued  to  the  press 
a  supplementary   statement,    in   which  he 
discussed  the  crucial  question  as  to  the  rights  of  the 
public,  which  he  failed  to  answer  in  the  debate  itself. 
This  statement  cannot  be  called  an  answer  to  the 
question,  for  he  touched  upon  the  issue  only  in  an 
evasive  manner.    The  nearest  he  came  to  an  answer 
was  this: 

Labor  has  no  desire  to  cause  inconvenience  to  the  public,  of 
which  it  is  a  part.  The  public  has  no  rights  which  are  superior 
to  the  toiler's  right  to  live  and  his  right  to  defend  himself  against 
oppression. 

He  assumes  by  this  statement  that  all  strikes 
involve  the  toiler's  right  to  live  and  defend  himself 
against  oppression.  This  assumption,  of  course,  is 
erroneous.  There  are  many  strikes  in  which  those 
rights  are  not  involved;  for  instance,  those  where 
workers  refuse  to  handle  nonunion  products  or  to 
work  with  nonunion  men.  Many  strikes  are  called 
where  something  decidedly  more  than  a  square  deal 
is  demanded.  In  the  Kansas  coal  strike  the  toiler's 


MR.  GOMPERS'S  STATEMENT        115 

right  to  live  and  defend  himself  against  oppression 
was  not  involved.  It  was  safeguarded  by  the  state 
in  the  offer  made  the  miners  under  the  state  receiver- 
ship. On  the  other  hand,  the  question  was  whether 
the  public  had  a  right  to  live  and  defend  itself  against 
oppression.  The  miners  had  plenty  of  coal — the  rest 
of  the  public  had  none. 

Even  if  Mr.  Gompers  was  right  in  that  assumption 
there  would  still  be  a  very  serious  flaw  in  his  argu- 
ment, for  he  assumes  also  that  this  term  "toilers" 
means  the  particular  union  craft  that  is  striking  in 
any  particular  case. 

There  were  12,000  coal  miners  in  Kansas.  The 
total  toiling  male  population  of  Kansas  is  something 
like  400,000.  Does  Mr.  Gompers  mean  to  say  that 
the  rights  of  the  12,000,  or  less  than  3  per  cent,  are 
greater  than  the  388,000,  or  more  than  97  per  cent? 
If  his  statement  means  anything  it  means  just  that. 
The  trouble  is  that  when  he  talks  of  "toilers"  he 
means  only  that  section  of  the  toilers  who  happen  to 
belong  to  organized  labor  and  thereby  happen  to 
have  placed  themselves  under  Mr.  Gompers's  leader- 
ship. And  when  any  particular  strike  is  under  dis- 
cussion he  can  mean  only  that  section  of  organized 
labor  that  is  striking,  for  the  other  sections  of  organ- 
ized labor  suffer  together  with  the  unorganized  pub- 
lic, no  matter  what  their  union  sympathies  may  be. 
In  any  case,  he  is  claiming  for  a  small  minority  the 
right  to  dictate  the  terms  of  life  to  the  majority. 

This  also  answers  his  contention  that  "there  is  no 


ii6  THE  PARTY  OF  THE  THIRD  PART 

public  wholly  separate  and  apart  from  employers  and 
employees." 

"Employment  to  the  employer  means  one  thing; 
employment  to  the  worker  means  another,"  he  said. 
"To  the  employer  it  is  an  impersonal  thing,  like  buy- 
ing steel,  while  to  the  worker  it  is  the  means  of  sus- 
taining life."  This  matter  is  discussed  under  the 
topic  of  collective  bargaining. 

"The  strike  is  the  only  effective  weapon  by  which 
the  workers  may  compel  consideration  of  their  just 
demands,"  he  continued.  "The  freedom  of  work- 
men in  enjoyment  of  the  right  to  strike  means 
the  freedom  of  men  to  make  life  better,  safer, 
happier — the  right  of  men  to  elevate  the  whole 
tone  of  society  and  to  force  abolition  of  abuse, 
injustice,  and  oppression." 

Against  this  assertion  it  is  pertinent  to  remind  the 
student  of  labor  policy  that  strikes  are  the  least 
frequent  in  times  of  depression,  when  workers  need 
relief  the  most,  and  strikes  are  most  abundant  in 
times  of  greatest  prosperity  and  an  upward  trend  of 
wages.  This  materially  refutes  this  argument  for 
the  strike.  The  function  of  the  industrial  court  in 
regard  to  times  of  depression  and  prosperity  is  dealt 
with  in  another  chapter. 

He  speaks  of  the  strike  being  "a  measure  necessary 
to  public  progress,"  and  says  that  it  has  "won  its 
right  to  a  post  of  honor  among  the  institutions  of 
free  civilization."  This  hardly  requires  comment  in 
the  light  of  the  tremendous  waste,  suffering,  and 


MR.  GOMPERS'S  STATEMENT        117 

friction  it  has  caused.  One  might  as  well  say  that 
the  caveman's  club  is  an  instrument  of  progress. 
Both  are  relics  of  raw  force;  both  are  reactionary. 

He  attempts  to  draw  a  parallel  between  the  prog- 
ress of  efficiency  among  workmen  and  the  growth  of 
strikes  and  raw  union  power.  As  a  matter  of  fact, 
efficiency  and  output  of  product  have  never  been  so 
low  as  under  the  period  of  most  abundant  strikes. 
The  year  1920  seems  destined  to  go  down  in  history 
as  a  year  in  which  organized  labor  reached  an  alarm- 
ingly low  point  in  morale.  In  the  report  of  the  grand 
jury  which  investigated  the  housing  shortage  in 
Cleveland  early  in  1920,  these  remarks  are  made: 

The  testimony  adduced  shows  conclusively  that  it  requires 
approximately  twice  as  long  for  the  same  number  of  men  to 
erect  a  house  to-day  as  it  did  in  prewar  time. 

Carpenters,  bricklayers,  paperhangers,  painters,  and  plaster- 
ers all  do  less  than  half  the  work  in  the  same  time  they  did  five 
years  ago. 

Manufacturing  firms  which  make  and  sell  building  materials 
prove  by  their  records  that  while  wages  have  gone  up  200  per 
cent,  labor  costs  have  gone  up  400  per  cent,  indication  that  their 
employees  are  getting  double  pay  for  one  half  the  work  as  com- 
pared with  before  the  war. 

A  railroad  mechanic  in  Milwaukee  went  through 
the  shop  one  day  in  July,  1920,  and  saw  a  locomotive 
standing  there  with  a  chalk  mark,  "To  be  finished 
September  1st."  As  a  mechanic,  he  gave  his  word 
that  the  work  could  have  been  finished  in  a  day. 
This  is  only  an  instance  which  many  readers  could 
doubtless  duplicate  hundreds  of  times. 


ii8  THE  PARTY  OF  THE  THIRD  PART 

"Industrial  peace  is  desirable.  Industrial  greed  is 
what  prevents  it,"  Mr.  Gompers  goes  on  to  say. 
This  statement  cheerfully  assumes  that  organized 
labor  is  altogether  faultless  and  that  the  employer 
in  every  case  is  to  blame.  No  comment  is  necessary. 

"The  struggle  is  in  industry,  not  in  politics,"  he 
says.  The  same  kind  of  statement  no  doubt  was 
made  when  a  law  against  dueling  was  proposed — 
"This  is  a  matter  of  honor  between  gentlemen — not 
a  matter  of  politics." 

One  of  the  statements  he  makes  is  taken  by  some 
to  have  a  great  significance.  He  says  that  "when 
employers  agree  to  abandon  their  old  concept,  when 
industry  ceases  to  be  operated  for  profit  alone,  then 
there  will  be  time  to  relax  that  eternal  militant 
vigilance  which  has  saved  the  workers  from  the 
abyss.  .  .  .  The  workers  will  not  sacrifice  human 
progress  for  an  abstraction  which  is  called  the  public 
welfare." 

By  what  economic  magic  does  Mr.  Gompers  pro- 
pose to  determine  where  and  when  industry  is  oper- 
ated for  "profit  alone"?  Here,  on  one  side,  we  have 
service;  on  the  other  side  we  have  profit.  Presum- 
ably, when  employers  operate  only  for  service,  there 
will  be  no  strikes,  according  to  Mr.  Gompers.  Well 
and  good.  And  then  suppose  workers  begin  to 
operate  only  for  service.  One  proposal  is  as  fair 
as  the  other.  Workers  have  been  known  to  work 
for  profit  alone,  not  caring  particularly  about  the 
service  they  were  rendering  society.  One  day  a 


MR.  GOMPERS'S  STATEMENT        119 

worker  feels  good.  He  takes  real  pleasure  and 
pride  in  his  work.  He  thinks  of  how  his  product 
will  feed  or  clothe  or  warm  society.  Another  day 
he  feels  out  of  sorts.  He  wants  to  get  through  the 
day's  work  and  draw  his  pay.  He  doesn't  care 
about  his  service  to  society. 

Where  does  Mr.  Gompers  propose  to  draw  the 
line  ? 

It  is  customary,  possibly,  to  think  of  the  employer 
being  devoted  wholly  to  profits.  We  do  not  propose 
to  argue  the  question.  But  is  not  there  an  outside 
chance  that  he  may  be  actuated  by  a  great  deal  the 
same  kind  of  motives  as  the  worker? 

What  Mr.  Gompers  has  in  mind  in  this  connection 
is  a  personal  regeneration  of  men's  hearts,  not  a 
matter  of  labor  or  political  policy.  On  such  a  plane 
we  shall  gladly  co-operate  with  him  in  any  effort  he 
may  have  in  mind.  But  in  the  meantime  we  have  to 
deal  with  the  frailties  and  errors  of  real  human 
beings,  who  average  up  about  the  same  whether  they 
be  employers  or  employees. 

"An  abstraction  called  the  public  welfare" — with 
such  an  airy  gesture  Mr.  Gompers  dismisses  that  for 
which  many  Americans  have  died.  Public  welfare 
means  good  government.  It  means  democracy.  It 
means  life,  liberty,  and  the  pursuit  of  happiness. 
If  it  is  a  mere  abstraction,  then  our  struggles 
toward  a  better  day  have  been  in  vain  and  our 
history  has  been  a  mockery. 

But  public  welfare  is  more  than  an  abstraction. 


120  THE  PARTY  OF  THE  THIRD  PART 

It  is  a  very  real  and  substantial  thing  toward  which 
we  as  a  nation  must  bend  our  attention  with  increased 
earnestness.  To  abandon  it  or  to  sneer  at  it  means 
a  surrender  to  autocracy.  The  question  concerning 
the  rights  of  the  public  is  still  unanswered  by  the 
spokesman  of  organized  labor. 


VIII 

LABOR  LEADERS  AND  THE  WAR 

I  FOUND  in  the  Carnegie  Hall  debate  that  the 
most  difficult  phase  of  the  labor  problem  which 
I  attempted  to  present  to  the  audience  was  that 
of  the  attitude  of  the  labor  leaders  during  the  war. 

That  part  of  the  audience  sympathetic  to  my  side 
of  the  question  was  surprised  that  I  should  attempt 
to  discuss  a  phase  which  would  necessarily  arouse  the 
bitter  hostility  of  all  the  adherents  of  Mr.  Gompers. 
I  did  not  attempt  this  until  I  discovered  that  Mr. 
Gompers,  in  his  argument,  was  laying  particular 
stress  upon  the  patriotic  attitude  of  labor  during 
the  war.  He  had  gone  to  even  greater  lengths  in 
previous  speeches,  and  the  tendency  of  his  remarks 
was  to  lead  to  the  conclusion  that  organized  labor 
was  more  patriotic  during  the  war  than  any  other 
class  in  our  population. 

It  is  not  my  purpose  to  detract  from  the  patriotism 
of  the  splendid  men  from  the  ranks  of  organized 
labor  who  trained  side  by  side  with  the  men  from 
the  schools,  the  colleges,  the  farms,  and  the  com- 
mercial walks  of  life,  and  who  fought  in  France. 
The  record  of  service  of  all  these  men  is  such  that  it 


elevates  them  to  a  degree  where  they  do  not  belong 
to  this  controversy.  They  all  merge  into  the  common 
sacrifice  which  America  made.  The  labor  ranks  are 
represented  in  the  60,000  who  lie  buried  in  France, 
in  the  250,000  who  have  come  home  bearing  the 
wounds  of  war,  and  in  the  3,000,000  who  have  re- 
turned to  their  ordinary  vocations.  These  men  do 
not  even  ask  us  to  compare  their  conduct  with  that 
of  the  men  who  stayed  at  home  for  twelve  dollars 
per  day  in  cost-plus  war  industries.  With  the 
modesty  of  the  really  brave  they  do  not  ask  us  to 
remember  how  really  patriotic  they  were. 

Concerning  the  contribution  of  man  power  which 
labor  made  to  the  conflict,  it  was  a  worthy  part  of 
the  whole.  Naturally,  it  enjoyed  from  the  selective 
draft  larger  exemptions  than  any  other  class,  because 
of  the  peculiar  need  of  productivity  in  order  that  we 
might  carry  on  the  functions  of  war,  but  there  is  no 
distinction  in  the  character  of  the  service  performed 
by  those  who  went  from  labor  and  those  who  went 
to  the  war  from  other  classes  of  society. 

When  we  come  to  discuss,  however,  the  attitude 
of  the  labor  leaders  during  the  war,  we  do  not  find 
in  it  any  justification  for  declaring  it  any  more 
patriotic  than  the  attitude  of  the  leaders  of  capital 
who  engaged  in  the  construction  of  cost-plus  war 
industries.  I  think  nothing  is  more  typical  as  an 
illustration  of  this  sort  of  labor  leader  than  the 
example  I  am  about  to  give. 

In  October,    1917,    President   O'Connell   of  the 


LABOR  LEADERS  AND  THE  WAR    123 

Metal  Trades  department  of  the  American  Federa- 
tion of  Labor,  in  an  address  at  Washington,  said: 

It  is  the  aim  and  object  and  effort  of  the  leaders  of  organized 
labor  in  our  country  to  maintain  organized  labor,  to  maintain 
our  rights,  to  strengthen  our  positions,  and  to  be  a  part  of  the 
war.  But  we  must  be  consulted.  We  must  be  taken  into  con- 
fidence. We  must  be  taken  into  conference.  We  must  be  sat 
down  with,  not  by  the  employer,  but  by  they  who  are  in  control 
of  the  governmental  affairs  of  our  country. 

I  have  chosen  President  O'ConnelPs  expression 
because  it  is  typical  of  the  spirit  of  all  the  leaders. 
I  believe  that  the  great  mass  of  workers,  both  union 
and  nonunion,  were  loyal  to  the  country,  but  habits 
of  thought  and  action  cannot  be  formed  over  long 
periods  of  time  without  expressing  themselves  in  a 
national  crisis.  The  leaders  of  organized  labor,  to 
preserve  their  own  oligarchic  control,  and  in  the 
obsession  of  their  fanatical  belief  in  the  necessity  of 
union  domination,  were  never  willing  to  forward  the 
prosecution  of  the  war  except  with  a  corresponding 
advancement  of  the  organized-labor  movement.  It 
was  never  subordinated  to  the  necessities  of  the 
country  and  every  pledge  of  co-operation  and  sup- 
port made  by  the  official  spokesman  of  the  American 
Federation  of  Labor  was  supported  by  reservations 
of  speech  and  conduct  which  plainly  indicated  that 
the  unionization  of  industry  and  the  exclusive  repre- 
sentation of  workers  through  unions  and  union 
leaders  was  the  price,  never  waived  or  conditioned, 
of  co-operation.  No  other  organization  went  so  far 


124  THE  PARTY  OF  THE  THIRD  PART 

as  to  say  that  the  government  must  obey  the  wishes 
of  that  organization  in  order  to  obtain  its  support. 
In  another  place,  O'Connell  said: 

Nothing  can  take  place,  nothing  can  be  done,  unless  we  are 
consulted  and  practically  give  our  consent  to  it.  ...  No  move- 
ment can  be,  no  movement  can  progress,  no  movement  can 
become  a  power  in  this  country,  no  movement  can  be  successful 
unless  the  trades-union  movement  says  so. 

You  get  the  full  shock  of  this  when  you  realize  that 
O'Connell  was  talking  to  workers  interested  in  great 
projects  like  shipbuilding.  He  was  at  the  head  of 
the  department  of  the  American  Federation  of  Labor 
which  had  most  to  do  with  that  essential  work  of  the 
war. 

Speaking  direct  to  his  co-laborers,  he  said : 

You  have  the  shipbuilding,  and  we  are  not  talking  about 
getting  a  penny  an  hour  increase  any  more.  Now  we  are  striking 
for  dollars.  We  have  forgotten  that  there  is  such  a  thing  in  the 
market  as  a  penny,  any  more.  It  is  dollars  we  are  talking  about. 
Out  on  the  Pacific  coast — you  know  what  is  going  on  out  there 
now — Seattle,  Portland,  San  Francisco — all  asking  for  a  dollar, 
two  dollars  a  day  increase,  three  dollars  a  day  increase.  It 
doesn't  frighten  anybody  any  more.  Nobody  gets  boisterous 
about  it  any  more.  We  are  just  getting  together,  and  going  to 
talk  to  get  dollars  now  instead  of  pennies.  .  .  .  Get  it  into  your 
head  to  talk  dollars.  See  what  you  got  when  you  talked  dollars 
the  last  time.  Keep  these  things  in  mind.  Talk  about  dollars, 
and  after  a  while  when  you  have  been  doing  that  awhile  you  will 
have  no  hesitancy  in  doing  it.  You  will  lose  your  bashfulness. 
The  opportunity  is  presented  for  the  first  time  in  the  history  of 
the  United  States.  Practically  a  union  contract  signed  between 
the  government  and  the  officers  of  the  department  and  affiliated 
organizations,  practically  requiring  the  shipbuilders  of  America 
to  come  to  Washington  and  put  their  feet  under  the  table  of 


LABOR  LEADERS  AND  THE  WAR    125 

labor  leaders.  Here  is  another  great  advantage  that  labor  has 
secured  in  connection  with  this  offer.  Instead  of  the  great  ex- 
pense you  have  been  obliged  to  go  to  in  these  matters,  the 
Shipping  Board  is  paying  our  expenses,  so  we  are  all  getting 
expenses  to  come  to  Washington  now,  and  the  government  is 
paying  them.  [Applause.] 

Isn't  that  a  pretty  good  union  agreement?  That  is  only  the 
beginning.  We  are  now  working  on  another  plan  to  handle  all 
the  munition  plants,  all  the  munition  factories  where  munitions 
of  any  kind  are  made  for  the  government,  either  direct  by  con- 
tract or  subcontract.  It  sounds  good  to  me.  If  any  of  you 
have  nine  dollars  in  your  pocket  you  would  think  about  it  and 
wish  it  were  ten.  If  you  had  ten  you  would  wish  it  were  a  hun- 
dred. If  a  hundred  you  would  wish  it  were  a  thousand.  If  you 
had  a  thousand  you  would  wish  it  were  ten  thousand.  If  you  had 
ten  thousand  you  would  wish  it  were  one  hundred  thousand. 
Now,  I  hope  you  men  here  will  get  in  their  minds  that  beautiful 
thought  of  "more."  Place  your  officers  in  a  position  to  go  out 
and  demand,  and  back  them  up. 

This  was  in  1917,  when  all  over  the  country  men 
and  women  were  being  urged  to  subscribe  to  Liberty 
Loans  and  other  war  measures  as  a  matter  of  pa- 
triotism, when  we  were  being  urged  to  conserve  that 
the  sinews  of  war  might  be  strengthened. 

We  are  all  familiar  with  the  manner  in  which  labor 
leaders  got  the  beautiful  thought  of  more. 

The  history  of  labor  and  capital  in  the  cost-plus 
war  industries  which  piled  the  waste  of  the  war  into 
bewildering  billions  will  form  the  most  disagreeable 
chapter  in  the  story  of  America's  contribution  to  the 
war.  The  effort  at  production  was  subordinated  to 
the  effort  to  pile  high  the  cost  of  the  work. 

Mr.  Piez,  the  late  Director  General  of  the  Emer- 
gency Fleet  Corporation,  declared: 


126  THE  PARTY  OF  THE  THIRD  PART 

Labor  has  been  deliberately  slack  during  the  war.  In  the 
shipyards  workmen  received  two  dollars  for  the  same  time  that 
a  year  ago  brought  only  one  dollar,  while  the  individual  output 
was  only  two  thirds  of  what  it  had  been  a  year  before. 

The  Marine  News  in  a  statement  said: 

The  pay  in  American  shipyards  in  1918  was  twice  as  high  as 
it  was  at  the  beginning  of  the  war,  and  the  output  per  man  was 
only  50  per  cent.  That  double  pay,  with  only  half  as  much 
produced,  resulted  in  a  cost  per  unit  of  production  four  times 
as  great. 

At  the  hour  when  the  demand  for  speeding  up  pro- 
duction in  order  that  our  soldiers  three  thousand 
miles  away  might  have  the  support  they  needed, 
there  were  strikes  in  practically  every  activity  which 
was  producing  munitions  and  material  of  war.  Be- 
tween April  6,  1917,  the  date  of  the  beginning  of  the 
war,  and  November  n,  1918,  the  day  the  war  closed, 
there  were  in  America  more  than  six  thousand 
strikes. 

These  figures  are  from  the  Bureau  of  Statistics  of 
the  Department  of  Labor  and  are  not  wholly  com- 
plete. If  you  wish  to  get  a  relative  comparison 
which  gives  you  the  full  and  shocking  meaning  of 
this,  compare  the  number  of  strikes  in  America  with 
those  in  Germany  during  a  like  period.  It  is  the 
estimate  of  the  Labor  Department,  based  on  the 
American  figures  and  the  official  statistics  of  the 
German  Empire,  that  four  times  as  many  workdays 
were  lost  through  strikes  in  the  month  of  September, 
1917,  in  the  United  States,  as  were  lost  in  the  entire 
year  of  1916  from  the  same  cause  in  Germany. 


LABOR  LEADERS  AND  THE  WAR    127 

It  is  my  belief  that  if  the  twelve  to  twenty  and 
thirty-dollar  a  day  men  who  worked  in  war  industries 
during  the  crucial  period,  and  the  leaders  who  organ- 
ized them  for  these  industries,  had  been  as  patriotic  as 
Mr.  Gompers  claims,  there  would  not  have  been  six 
thousand  strikes  in  the  United  States,  of  an  average 
duration  of  eighteen  days  each,  while  we  had  two 
million  soldiers  in  foreign  lands  working  sometimes 
twenty-four  hours  a  day  for  thirty-three  dollars  a 
month,  facing  death  in  trenches  and  open  fields,  fight- 
ing with  insufficient  equipment  and  insufficient  cloth- 
ing, and  whose  only  thought  of  more  was  that  they 
might  have  more  material  of  war,  more  munitions, 
and  more  equipment  with  which  to  carry  on  the  mag- 
nificent effort  to  which  they  had  pledged  their  lives. 

While  this  was  going  on,  Mr*.  Gompers  declared  in 
America  that  it  was  damnable  that  240,000  govern- 
ment employees,  drawing  salaries  up  to  $2,500  a 
year,  should  be  made  to  work  eight  hours  a  day. 

Mr.  Gompers  gave  us  frequent  assurances  of  his 
loyalty,  but  he  cannot  escape  the  part  he  took  in 
defeating  the  work -or -fight  law  and  the  Thomas 
amendment,  which  would  have  prevented  the  draft- 
ing of  670,000  eighteen-year-old  boys  into  the  service, 
notwithstanding  the  fact  that  there  were  21,000,000 
available  grown  men  of  military  age  from  which  to 
select  at  that  hour  only  2,300,000  needed  soldiers. 
By  putting  into  effect  the  work-or-fight  order  we 
would  have  secured  twice  the  number  needed.  In- 
stead of  that,  Congress  obeyed  the  wishes  of  Mr. 


:28  THE  PARTY  OF  THE  THIRD  PART 

Gompers  on  the  subject  and  we  began  to  draft 
eighteen-year-old  boys  for  the  service,  while  some  of 
the  laboring  men,  both  organized  and  unorganized, 
refused  to  work  in  war  activities  unless  they  were 
paid  twelve  to  fifteen  dollars  a  day. 

During  September,  1917,  in  the  midst  of  a  most 
disastrous  drought  in  Oklahoma  and  Texas,  the  shop- 
men of  the  Orient  Railway  demanded  an  advance  in 
wages,  a  compliance  with  which  would  have  placed 
the  Orient's  schedule  of  wages  in  excess  of  that  paid 
by  such  wealthy  neighbors  as  the  Santa  Fe.  This, 
together  with  the  Orient's  financial  inability  to  pio- 
neer in  the  advancing  of  wages,  resulted  in  declining 
the  demand.  This  was  followed  by  a  strike  of  all 
the  mechanics,  which  practically  ruined  the  func- 
tioning of  this  road  in  an  important  section  at  a 
critical  period.  The  ranges  in  Oklahoma  and  Texas 
were  full  of  stock  perishing  for  want  of  proper  pas- 
turage. The  management  of  the  railroad  had  just 
secured  a  goodly  number  of  stock  cars  for  the  pur- 
pose of  moving  the  cattle  to  pastures  where  feed  and 
water  were  obtainable,  and  the  general  manager 
made  a  personal  appeal  to  the  loyalty  and  patriotism 
of  the  men,  asking  that  they  continue  work  at  least 
sufficiently  long  to  remove  the  cattle  to  a  place  of 
refuge,  calling  attention  to  the  supreme  importance 
of  conserving  foodstuff  at  that  time.  His  request 
was  treated  with  silent  contempt,  and  thousands  of 
cattle  perished  because  there  was  no  way  of  moving 
them  either  to  market  or  to  other  pasture  lands. 


LABOR  LEADERS  AND  THE  WAR    129 

The  Brotherhood  of  Railroad  Trainmen,  under  the 
leadership  of  Murdock  of  Chicago,  went  on  a  strike, 
not  against  the  railroads,  but  against  the  switch- 
men's union,  to  force  the  roads  to  employ  only 
members  of  that  organization,  which  is  the  only 
railroad  organization  affiliated  with  the  American 
Federation  of  Labor.  This  was  at  the  very  time 
when  our  troops  were  being  rushed  across  the  coun- 
try, most  of  them  through  Chicago,  by  the  thousands. 

Another  strike  occurred  in  the  oil  fields  of  Louisi- 
ana and  Texas  just  as  our  boys  were  going  across 
the  ocean  at  the  rate  of  two  hundred  and  fifty  thou- 
sand a  nronth.  Most  of  the  transports  were  using  oil 
as  fuel.  This  strike  slowed  down  the  movement.  It 
was  for  the  purpose  of  bringing  economic  pressure  of 
the  grimmest  sort  at  an  hour  of  national  peril  that 
this  strike  was  ordered. 

These  are  merely  types  of  the  six  thousand  strikes 
that  occurred  during  the  crucial  days  in  our  pro- 
duction. 

There  is  no  record  that  Mr.  Gompers  protested 
against  any  of  these  strikes.  He  seemed  to  regard 
these  opportunities  as  legitimate  occasions  for  forc- 
ing advantages  which  could  not  be  obtained  in  times 
of  less  pressure. 

On  the  day  the  armistice  was  signed,  Mr.  Gompers, 
accompanied  by  Secretary  of  Labor  Wilson,  was  in 
Laredo,  Texas,  attending  an  international  labor  con- 
ference for  the  purpose  of  organizing  Mexican  labor 

and  affiliating  it  with  the  American  Federation  of 
9 


i?o  THE  PARTY  OF  THE  THIRD  PART 

Labor.  According  to  press  reports  of  that  meeting 
Mr.  Gompers  is  quoted  as  saying,  "Labor  will  not 
surrender  any  of  the  advantages  it  gained  during  the 
war."  This  in  itself  is  an  admission  that  his  concep- 
tion of  labor  policy  during  the  war  included  very 
materially  the  consideration  of  gaining  something. 

I  am  aware  that  the  foregoing  utterances  will 
arouse  the  anger  of  some  of  the  radical  labor  leaders, 
but  it  is  high  time  that  the  situation  be  faced  can- 
didly. The  impulse  of  the  rank  and  file  of  labor — 
organized  or  unorganized — was  loyal  during  the  war. 
1  will  not  be  misquoted  on  that  point.  The  principal 
fault  lies  with  the  radical  leaders,  and  the  responsi- 
bility can  often  be  placed  quite  definitely.  One  of 
these  days  the  rank  and  file  will  discover  that  there 
has  been  false  leadership,  and  there  will  be  a  weeding 
out.  If  there  is  ever  a  reaction  against  organized 
labor  because  of  these  things — which  I  hope  there 
will  not  be,  the  fault  will  lie  squarely  on  the  heads  of 
those  leaders,  for  they  have  been  shortsighted  and 
drunk  with  power. 


IX 

WHY   THE    INDUSTRIAL   COURT? 

A  MAN  may  run  around  in  a  twenty-foot 
circle  in  an  empty  hall,  whooping  and  creat- 
ing a  general  disturbance,  without  causing 
the  community  any  inconvenience. 

If  there  were  a  few  other  men  in  the  room,  engaged 
in  various  diversions,  such  excrescent  manifestations 
of  liberty  might  still  be  harmless. 

Let  the  same  hall  be  crowded  with  people  trying 
to  listen  to  a  speech  or  a  violin  solo.  A  man  pursuing 
such  tactics  would  be  promptly  called  to  account 
for  stepping  on  the  toes  of  the  audience  and  for  pre- 
venting them  from  enjoying  their  plain  rights.  He 
would  probably  be  arrested  for  trespassing  upon  the 
liberties  of  others. 

If  there  were  two  men  employing  his  tactics,  play- 
ing some  kind  of  a  bear-cat,  tooth-and-claw  game, 
the  people  would  either  have  to  get  out  of  the  hall 
and  admit  they  were  bested,  or  adopt  some  kind  of 
restrictions  that  would  curb  the  activities  of  the 
boisterous  contenders. 

One  theory  of  handling  industrial  relations  is  built 
around  the  philosophy  that  the  important  thing  is  to 


i32  THE  PARTY  OF  THE  THIRD  PART 

bring  about  a  feeling  of  co-operation  between  the 
two  contenders  in  the  hall  without  restricting  the 
liberties  of  the  two  or  protecting  the  interests  of 
the  other  occupants.  The  rights  of  the  audience — 
the  party  of  the  third  part — seem  to  be  very  much 
in  the  background,  or  virtually  non recognized. 

This  theory  is  all  right  as  far  as  it  goes,  but  its  sin 
of  omission  is  equivalent  to  a  fault  of  commission.  It 
is  voiced  in  the  report  of  the  President's  Industrial 
Conference,  to  which  more  extended  notice  will  be 
devoted  later.  It  says,  in  discussing  the  develop- 
ment of  industrial  relations  from  the  dawn  of 
civilization : 

While  the  relations  between  employers  and  employees  are 
primarily  a  human  problem,  the  relationship  in  its  legal  aspects 
is  one  of  contracts.  In  the  development  and  establishment  of 
this  right  of  contract  on  the  part  of  workmen  is  written  the  his- 
tory of  labor. 

It  says  of  any  decision  of  the  tribunal  it  proposes 
to  erect: 

It  shall  have  the  full  force  and  effect  of  a  trade  agreement 
which  the  parties  to  the  dispute  are  bound  to  carry  out. 

It  says  of  the  freedom  of  labor: 

It  may  aid  in  comprehending  the  work  of  the  conference  to 
recall  that  the  present  condition  of  freedom  has  come  about  not 
so  much  from  positive  laws  as  from  the  removal  of  restrictions 
which  the  laws  impose  upon  the  rights  and  freedom  of  men. 
The  conference  confesses  that  in  the  prose  ution  of  its  work  it 
has  been  animated  by  a  profound  convict.on  that  this  freedom 
that  has  been  wrought  out  after  many  centuries  of  struggle 
should  be  preserved. 


WHY  THE  INDUSTRIAL  COURT?     133 

The  system  of  machinery  proposed  by  this  report 
resolves  itself  into  a  device  for  hastening  and  facili- 
tating collective  bargaining.  The  public  is  excluded. 
The  decision  that  may  be  arrived  at  is  a  private  two- 
way  contract  and  not  a  pronouncement  of  general 
welfare.  The  party  of  the  third  part  hovers  in  the 
background  waiting  for  the  crumbs  from  the  indus- 
trial table. 

This  brings  us  to  the  nub  of  the  question. 

Has  society  arrived  at  such  a  complex  state  that 
certain  industrial  disputes  are  properly  a  concern  of 
government  ? 

The  newly  created  Kansas  Court  of  Industrial  Re- 
lations law  says,  "Yes." 

The  Kansas  institution  aspires  to  do  all  the  be- 
nevolent things  for  labor  advocated  by  the  Presi- 
dent's conference,  but  it  wishes  to  go  still  farther. 

To  revert  to  the  homely  illustration  first  employed 
in  this  chapter,  it  proposes  to  protect  the  rights  and 
privileges  of  the  many  people  in  the  hall  by  reason- 
ably restricting  the  liberties  of  the  two  contending 
men.  It  would  provide  means  whereby  the  two 
men  might  get  along  better  and  adjust  their  diffi- 
culties, and  then  it  would  go  a  step  farther  and 
notify  them  that  they  must  quit  stepping  on  the  toes 
of  the  people  at  large  and  interfering  with  the  peo- 
ple's lives,  liberties,  and  pursuits  of  happiness — 
which,  of  course,  is  simply  good  common-sense 
American  doctrine. 

The  national  community  has  become  a  crowded  hall. 


Organization,  modern  inventions,  and  rapid  inter- 
communication and  dissemination  of  information 
have  brought  people  so  close  together  that  they  are 
in  constant  danger  of  stepping  on  one  another's  toes. 
Miles  have  been  annihilated.  Organization,  whether 
of  capital  or  labor  or  any  other  interest,  has  spread 
its  sensitive  and  powerful  electric  web  over  the 
nation,  and  it  touches  every  department  of  life. 
Economic  power  of  enormous  magnitude  has  become 
a  factor  that  affects  the  welfare  of  all. 

In  1835,  if  all  the  milk-wagon  drivers,  coal-mine 
owners,  railroad  laborers,  bakers,  and  meat  packers 
in  the  United  States  had  prevented  their  respective 
institutions  from  functioning  for  a  month,  it  would 
scarcely  have  caused  a  ripple.  In  1920  such  a  stop- 
page would  cause  the  deaths  of  thousands  of  people 
and  the  worst  panic  in  history,  or  a  revolution  that 
would  change  this  government  from  one  of  the  ballot 
box  to  one  of  economic  leverage  and  the  terrorism 
of  raw  power.  What  could  have  been  done  with 
impunity  a  few  decades  ago  would  now  be  intolerable 
interference  with  public  welfare.  What  was  simple 
exercise  of  freedom  then  would  be  a  death  blow  to 
orderly  popular  government  now.  What  was  liberty 
then  would  be  syndicalism,  direct  action,  Bolshevism, 
now. 

So  gradually  has  this  change  taken  place  that  it  is 
difficult  to  realize  to  what  extent  we  are  at  the  mercy 
of  economic  agencies.  In  a  few  decades  there  has 
come  the  change  from  the  hand  loom  to  the  central- 


WHY  THE  INDUSTRIAL  COURT?     135 

ized  textile  mill,  from  the  oxcart  to  the  four-track 
railroad  system,  from  the  individual  home  wood  box 
to  the  gigantic  fuel  mines  and  plants,  from  the  rural 
and  village  "hog  killings"  to  the  titanic  packing- 
plant  systems. 

The  new  factor  of  economic  leverage  has  crept  into 
government  itself,  just  as  Marx  predicted.  It  rests 
with  government  to  decide  how  this  factor  is  to  be 
handled.  This  factor  has  been  made  possible  through 
intensive  specialization,  organization,  combinations  of 
capital,  the  march  of  the  machine  process,  revolution- 
ary inventions,  and  lightninglike  intercommunication. 

Government  recognized  the  factor  of  economic 
leverage  in  one  form  when  it  enacted  antitrust  laws 
and  similar  measures  to  curb  the  power  of  raw  capi- 
talistic organization.  More  than  a  score  of  years 
ago  the  battle  of  human  rights  against  economic 
pressure  suddenly  took  the  form  of  a  drive  against 
the  newly  erected  bulwarks  of  trusts  and  mergers. 
It  has  recently  begun  to  dawn  on  the  people  that 
economic  pressure  may  also  come  from  the  direction 
of  labor,  in  spite  of  the  fact  that  labor  is  invested 
with  a  justifiable  sentimental  value  that  never  can 
attach  to  capital.  The  Kansas  court  proposes  to 
relieve  the  pressure  from  both  directions. 

The  force  of  a  well-organized  minority  has  already 
been  felt  in  legislation. 

When  the  four  brotherhoods  held  the  stop  watch 
on  Congress  and  brought  about  the  enactment  of  the 
Adamson  law,  we  saw  a  vivid  example  of  coercion  by 


i36  THE  PARTY  OF  THE  THIRD  PART 

a  minority  armed  with  economic  power.  Nobody 
even  pretended  that  the  majority  of  the  people 
favored  the  Adamson  law.  That  phase  of  the  ques- 
tion seemed  to  have  escaped  notice.  Congress  and 
the  administration  surrendered  to  the  threat  of 
minority  force. 

The  uncomfortable  inference  is  left  in  Chief- Justice 
White's  opinion  on  the  Adamson  law  (Wilson  vs. 
New,  243  U.  S.)  that  Congress  was  compelled  to 
enact  it  to  prevent  a  nation-wide  strike  that  would 
have  paralyzed  the  industry  of  the  country  and 
would  have  brought  widespread  suffering.  Of  course 
that  was  not  the  only  consideration  in  upholding  the 
constitutionality  of  the  law.  If  it  had  been,  there 
would  be  good  reason  for  feeling  apprehension  at  the 
drift  of  it. 

The  old  American  Federation  of  Labor  idea  of  a 
strike  was  that  of  a  cessation  of  work  to  bring  about 
better  wages  or  working  conditions.  As  long  as  the 
leaders  stuck  to  that  idea  they  were  on  comparatively 
safe  ground.  But  the  "borers  from  within"  came, 
and  other  conceptions  of  the  strike  were  introduced 
— the  cessation  of  work  to  hinder  or  stop  the  pro- 
duction of  vital  essentials,  and  thereby  coerce  society 
by  show  of  force.  This  was  the  syndicalist  or  Marx- 
ian theory,  related  to  the  general  political  strike  and 
direct  action. 

The  second  conception  of  the  strike  is  not  dan- 
gerous, perhaps,  as  long  as  the  disease  is  confined  to 
the  areas  of  identified  Bolshevism,  but  the  trouble 


WHY  THE  INDUSTRIAL  COURT?     137 

is  that  it  is  unconsciously  adopted  by  many  well- 
meaning  people  who  would  indignantly  repudiate 
any  kinship  with  the  direct  actionists. 

The  London  Times,  in  speaking  of  the  recent 
French  railroad  strike,  puts  the  situation  in  this 
clear  language: 

It  is  the  fundamental  issue  for  all  modern  democracies.  Is 
the  majority  to  govern  or  not?  If  it  is,  the  people  everywhere 
must  see  that  the  responsible  executive  shall  govern,  and  nobody 
else.  The  executive  is  responsible  to  them,  for  it  is  responsible 
to  the  representatives  they  have  freely  and  constitutionally 
chosen.  To  challenge  it  is  to  challenge  them;  to  defy  it  is  to 
defy  them.  They  may  insist  upon  its  dismissal  if  it  is  serving 
them  ill.  They  cannot  leave  it  in  office  and  suffer  it  to  be  thwarted 
by  sectional  organizations  of  any  kind  without  derogating  from 
their  own  authority,  and  from  the  principle  of  majority  rule.  A 
hundred  citizens  organized  in  this  or  that  corporation  have  no 
better  constitutional  way  than  a  hundred  men  who  are  not 
organized.  To  attempt  to  obtain  it  against  the  will  of  an 
unorganized  majority  by  virtue  of  their  organization,  of  the 
menaces  it  can  employ,  and  the  loss  and  suffering  it  can  impose, 
is  a  tyrannical  abuse.  Organizations  of  the  kind  have  shown  a 
growing  pretension  to  substitute  themselves  for  constitutional 
governments,  or  to  dictate  to  those  governments  the  policy  they 
are  to  pursue.  They  are  threatening  to  become  parasitic  gov- 
ernments themselves,  eating  into  the  very  essence  of  democratic 
rule,  degrading  by  threats  and  violence  the  constitutional  gov- 
ernment into  their  tool,  and  the  mass  of  their  fellow  men  into 
their  submissive  serfs.  In  France  the  issue  is  now  fairly  joined, 
and  we  are  glad  to  see  that  M.  Millerand  and  his  colleagues 
purpose  to  fight  it  without  flinching. 

Albert  Rhys  Williams,  in  his  recently  published 
book,  Lenin,  quotes  the  Russian  chief  as  follows : 

Every  system  of  feudal-aristocratic  social  control  in  Europe 
was  destined  to  be  destroyed  by  the  political-democratic  social 


138  THE  PARTY  OF  THE  THIRD  PART 

control  worked  out  by  the  French  Revolution.  Every  system 
of  political-democratic  social  control  in  the  world  to-day  is 
destined  now  to  be  destroyed  by  the  economic-producers'  social 
control  worked  out  by  the  Russian  Revolution. 

This  is  merely  a  restatement  of  Marx's  familiar 
Law  of  Economic  Determinism,  which  holds  that  gov- 
ernment should  be  a  function  controlled  by  pure 
economic  facts;  that  production  of  food,  clothing, 
and  other  utilities  constitutes  the  sole  right  to  govern. 

So  strongly  has  this  theory  obtained  hold  in 
British  labor  circles  that  early  in  March,  1920,  more 
than  a  million  out  of  3,870,00x3  union-labor  votes 
were  cast  for  direct  action  as  opposed  to  political 
action  in  the  matter  of  trying  to  secure  the  nationali- 
zation of  mines. 

It  is  almost  inconceivable  that  such  an  issue  will 
ever  come  to  a  serious  stage  in  the  New  World,  for 
Americans  believe  their  system  of  government  is  too 
firmly  established;  but  the  Lenin  theory  cannot  be 
dismissed  as  a  mere  bugaboo.  Even  now  we  find 
such  propaganda  papers  as  the  Non-Partisan  Leader 
boldly  painting  the  beauties  of  the  Russian  economic 
government  as  opposed  to  political  governments. 
Economic  has  a  better  sound  than  political,  to  the 
superficial  reader.  It  should  be  understood  that  the 
theory  of  Bolshevism  is  mentioned  in  this  book  as  a 
background,  and  not  as  an  integral  pan  of  the  pic- 
ture. There  is  no  intention  of  linking  organized 
labor  with  Bolshevism.  The  American  Federation, 
in  its  rank  and  file,  is  strongly  against  Bolshevistic 


WHY  THE  INDUSTRIAL  COURT?     139 

theories,  especially  when  the  American  workingman 
sees  the  disastrous  effects  of  Sovietism — the  com- 
pulsory labor,  the  twelve-hour  day,  the  absolute 
prohibition  of  strikes,  and  similar  paradoxical  mani- 
festations. The  purpose  herein  is  to  depict  the  logi- 
cal conclusion  of  the  use  of  economic  pressure, 
whether  it  comes  from  the  small  minority  of  organ- 
ized capital  or  the  small  minority  of  organized  labor. 
It  all  sums  up  in  the  proposition  that  the  people 
will  have  to  take  over  a  part  of  the  responsibility  of 
administering  economic  justice  as  a  political  function 
— using  the  word  "political"  in  its  good  and  proper 
sense — otherwise  the  pent-up  flood  of  economic 
grievances  will  increase  and  break  the  strong  bonds 
of  democracy.  The  political  rule  of  majorities  other- 
wise will  be  disregarded  and  resort  will  be  had  to 
tooth-and-claw  force.  The  responsibility  of  the  peo- 
ple, through  government,  is  to  restrain  and  properly 
direct  the  forces  of  both  capital  and  labor  and  see 
that  they  do  not  grow  into  agencies  of  potential 
destruction,  all  the  more  dangerous  because  of  their 
majestic  toppling  splendor.  This  is  why  the  indus- 
trial court  is  philosophically  sound  and  inevitable 
as  an  evolutionary  development  in  society.  It  is 
that  or  economic  rule.  It  is  the  American  preventive 
of  Leninism.  It  is  the  American  preventive  of  un- 
restrained capitalism.  It  is  the  balance  wheel  on 
some  economic  tendencies  that  have  been  "racing." 
A  more  extended  discussion  of  the  economic  theory 
of  government  will  be  given  in  a  subsequent  chapter. 


i4o  THE  PARTY  OF  THE  THIRD  PART 

The  radical  is  prone  to  trace  existing  evils  to  the 
"capitalistic  system."  A  change  to  a  socialistic  or 
communistic  system  would  not  help,  however,  for 
the  latter  would  have  the  same  defect  as  the  former 
— the  unrestrained  use  of  economic  power.  Such  a 
change  would  be  merely  jumping  from  the  frying  pan 
into  the  fire.  Witness  Russia.  The  only  genuine 
method  of  relief  is  through  agencies  carrying  out  the 
American  ideal,  which,  in  its  essence,  is  the  applied 
Golden  Rule. 

When  government  stepped  in  and  began  to  regu- 
late capital,  the  capitalists  protested  that  their 
"liberty"  was  being  restricted.  The  same  protest 
is  heard  when  government  proposes  to  regulate  in- 
dustrial disputes.  Labor  leaders  protest  that  their 
"liberty"  is  being  restricted.  Both  elements  must 
come  to  recognize  the  eternal  fact  that  liberty  is 
only  a  relative  term.  The  liberty  exercised  by  one 
man  may  constitute  his  tyranny  over  another  man. 
No  man  liveth  to  himself.  The  only  perfect  liberty 
is  found  on  a  desert  island.  As  men  become  more 
civilized  they  find  it  necessary  to  surrender  a  part 
of  their  liberties  in  exchange  for  the  advantage  of 
complex  relationships. 

The  feature  of  the  Kansas  law  confining  its  re- 
strictions to  strikes  whose  intent  is  to  hinder  or  re- 
strict or  stop  production  of  vital  essentials,  is  the 
central  thought  that  divides  legitimate  from  illegiti- 
mate cessations  of  work.  The  Kansas  law  seeks  to 
prevent  only  the  syndicalist  form  of  a  strike.  When 


WHY  THE  INDUSTRIAL  COURT?     141 

this  feature  is  fully  understood,  and  when  it  is  forti- 
fied by  legal  decisions — as  we  confidently  expect  it 
will  be — a  new  chapter  in  American  industrial  law 
will  begin. 

However,  it  is  a  mistake  to  assume  that  the  Kansas 
law  is  concerned  only  with  the  prevention  of  strikes. 
It  also  forbids  lockouts  in  the  four  essential  indus- 
tries mentioned,  and  it  has  teeth  in  it  for  the  employer 
as  well  as  for  the  employee.  It  proposes  to  curb 
the  tyranny  of  capital  just  as  stringently  in  its  indus- 
trial relations  as  it  curbs  the  tyranny  of  radical  labor. 

The  court  is  given  wide  powers  of  investigation. 
It  is  given  the  power  to  order  changes  in  the  conduct 
of  industries  in  the  matter  of  minimum  wages,  hours, 
and  working  and  living  conditions,  rules  and  prac- 
tices. Any  appeals  from  the  decisions  of  this  court 
go  directly  to  the  state  supreme  court,  and  tran- 
scripts of  evidence  are  furnished  free  to  litigants. 
It  is  the  only  court  in  the  nation  where  a  man, 
whether  he  wins  or  loses,  may  have  a  full  and  free 
hearing  without  the  payment  of  costs.  "It  might 
well  be  called  the  court  of  the  penniless  man/'  says 
Judge  Huggins. 

Collective  bargaining  is  sanctioned,  and  incor- 
porated unions  may  appear  through  accredited 
officials.  An  employer  may  not  discharge  an  em- 
ployee or  discriminate  against  him  because  of  the 
fact  that  he  may  have  testified  or  signed  a  complaint 
in  the  court. 

The  law  enters  into  the  humanitarian  phase  of 


i42  THE  PARTY  OF  THE  THIRD  PART 

labor  and  provides  for  preventive  and  constructive 
means  for  the  avoidance  of  disputes.  It  provides 
for  publicity,  and  it  gives  every  possible  opportunity 
for  arbitration,  conciliation,  the  establishment  of  em- 
ployee representation,  and  other  enlightened  meas- 
ures. It  encourages  settlements  out  of  court.  Then 
it  says  of  certain  strikes  and  lockouts,  to  employer 
and  employee  alike,  "Thus  far  you  may  go,  and  no 
farther." 

It  provides  machinery  for  a  helpful  study  of  labor 
conditions,  and,  what  is  more  important,  it  permits 
the  use  of  court  orders  correcting  bad  conditions. 
According  to  a  plan  made  in  February,  1920,  shortly 
after  its  establishment,  the  court  conducted  an  ex- 
haustive survey  of  the  coal-mining  regions,  and  col- 
lected data  on  the  cost  of  living,  housing  conditions, 
and  other  factors  bearing  on  the  welfare  of  labor. 
Its  powers  are  commissionlike  as  well  as  judicial. 
It  has  a  direct  and  positive  manner  of  going  at  the 
heart  of  a  difficulty  and  is  not  in  danger  of  being 
neutralized  by  lack  of  power. 

Philosophically,  and  in  general,  the  foremost  con- 
cern of  the  Industrial  Court  is  to  protect  the  rights 
and  lives  of  the  public,  including  employers  and 
employees.  It  goes  back  to  first  American  principles. 
It  guides  away  from  the  path  pointed  out  by  Lenin. 
It  resists  the  deep,  philosophical  motive  of  Bolshe- 
vism, which  is  the  theory  of  economic  force.  It 
restores  to  the  majority  something  that  seems  to  be 
drifting  away.  That  something  is  just  as  much  a 


WHY  THE  INDUSTRIAL  COURT?     143 

part  of  life,  liberty,  and  the  pursuit  of  happiness  as 
anything  for  which  the  fathers  fought.  That  some- 
thing is  the  great  prize  of  industrial  peace  and  in- 
dustrial justice,  which  affect  the  public  just  as  much 
as  they  affect  capital  and  labor. 

Strikes,  lockouts,  and  other  oppressive  caveman 
measures  can  no  longer  be  considered  mere  private 
disputes  under  our  finely  organized  society.  The 
world  is  getting  too  crowded  and  its  activities  are  be- 
coming too  scientific.  Watches  cannot  be  repaired  with 
monkey  wrenches  and  crowbars.  There  is  no  valid 
reason  why  industrial  disputes  should  not  be  settled 
by  the  government  of  the  people  than  there  is  a  reason 
for  settling  debts  by  the  use  of  fists  or  clubs.  There 
is  no  valid  reason  why  the  majority  should  submit  to 
tremendous  hardship  because  of  quarrels  between 
members  of  a  minority,  when  such  quarrels  can  be 
settled  justly  by  the  majority  through  law.  Courts 
are  not  perfect,  but  they  stand  between  savagery 
and  civilization.  If  criminal  and  civil  courts  can  be 
trusted,  industrial  courts  can  be  trusted.  "Let  the 
safety  of  the  public  be  the  supreme  law." 


X 

GOVERNMENT  AND   ITS   POLICE    POWERS 

A  if  investigation  into  the  proposal  to  bring  in- 
dustrial disputes  under  the  clear-cut  power 
of  government  necessitates  an  exhaustive 
inquiry  into  the  very  nature  of  government. 

In  its  basic  theory  government  is  not  a  complex  or 
puzzling  thing.  In  general,  it  is  the  effort  to  take 
advantage  of  the  social  instinct  to  advance  the  gen- 
eral welfare  by  establishing  a  set  of  just  and  workable 
rules  that  will  eliminate  destructive  and  wasteful 
friction. 

Primitive  government,  by  chiefs,  rulers,  kings,  and 
other  autocrats,  had  its  roots  somewhere  in  the  belief 
that  wisdom  and  strength  came  directly  from  divin- 
ity. This  promoted  the  idea  of  succession.  Hero 
worship,  deserved  or  undeserved,  was  responsible  for 
the  long  and  persistent  life  of  autocratic  government. 

As  time  went  on  men  found  that  the  rule  of  suc- 
cession, through  primogeniture  or  otherwise,  did  not 
always  work  out  well,  for  mediocre  or  degenerate 
rulers  sometimes  sat  upon  the  throne,  and  so  the 
effort  to  choose  executives  from  the  ranks  became 
more  and  more  vigorous.  At  the  same  time  the  so- 


GOVERNMENT  AND  POLICE  POWERS   145 

called  divine  rights  were  more  and  more  ignored, 
and  the  kings  were  shorn  of  their  absolute  powers. 

Upon  reflection  it  seems  almost  incredible  that  in 
this  very  generation,  in  one  of  the  most  enlightened 
nations  of  the  world,  there  was  a  ruler  who  said, 
"We  Hohenzollerns  take  our  power  from  God." 
Autocracy  dies  hard  and  it  feeds  upon  intellectual 
indolence  or  docility. 

There  was  a  deterrent  to  democracy,  however, 
that  argued  powerfully  upon  the  side  of  monarchy. 
It  was  the  argument  that  "the  tree  is  judged  by  its 
fruits."  If  a  king  was  just  and  kind  and  adminis- 
tered affairs  wisely,  he  produced  the  effect  of  vindi- 
cating the  principle  of  monarchy  itself.  This  con- 
fused the  issue. 

Gradually,  through  the  ages,  however,  the  people 
came  to  realize  that  it  was  not  safe  to  lodge  power 
in  the  hands  of  the  few,  even  though  the  power  was 
wisely  used  in  a  majority  of  cases.  Government  was 
taken  over  by  the  people. 

The  drift  from  autocracy  to  self-government  was 
a  process  of  guaranteeing  justice  to  all.  Always  the 
effort  was  to  do  away  with  special  privilege.  It  was 
a  self-evident  truth  that  autocracy  meant  special 
privilege,  so  autocracy  had  to  go. 

But  the  ostrich  is  not  made  safe  by  putting  his 
head  in  the  sand.  Neither  are  people  made  safe 
from  autocracy  because  they  change  the  names  of 
their  autocrats  or  give  them  different  channels  of 
activity.  Self-governing  nations  are  always  on  trial. 


10 


146  THE  PARTY  OF  THE  THIRD  PART 

Democracy  is  not  a  goal,  but  a  continuous  fight. 
Human  liberty  is  not  a  dream,  but  a  battle. 

England  has  a  king,  but  in  some  ways  its  govern- 
ment is  more  responsive  to  the  popular  will  than 
ours.  This  is  especially  true  in  regard  to  the  conduct 
of  public  affairs.  While  we  have  laid  stress  upon 
relieving  ourselves  of  the  forms  of  autocracy,  have 
we  permitted  the  substance  of  autocracy  to  return 
under  new  guises? 

Dethroning  a  monarch  is  only  one  step  in  the  march 
of  democracy.  Self-government  is  not  static,  but 
kinetic.  It  is  not  a  settled  state  of  affairs,  but  rather 
a  working  power  constantly  throwing  off  new  au- 
tocracies in  new  forms. 

Government,  particularly  government  of  the  peo- 
ple, is  sensitive  to  changes  in  customs  and  manners. 
New  conditions  continually  require  new  laws. 

In  1850  nobody  but  an  insane  person  would  have 
suggested  a  law  providing  for  the  regulation  of  air- 
plane flights.  In  1800  Kansas  needed  no  speed-limit 
laws.  In  the  Middle  Ages  it  was  quite  proper  to 
carry  weapons. 

A  study  of  the  law  of  primitive  societies  affords  a 
wealth  of  example  as  to  the  progressive  and  mutable 
nature  of  government.  One  of  the  laws  of  the  West- 
goths,  in  the  year  1200,  was  this: 

If  a  wild  beast  takes  cattle  from  a  herdsman  and  the  herdsman 
gets  no  remnants  from  it,  let  him  lose  as  much  of  his  hire  as  the 
animal  is  worth.  If  he  gets  remnants  then  he  is  not  at  fault. 
If  an  animal  lies  in  the  mire,  dead,  then  shall  the  herdsman 


GOVERNMENT  AND  POLICE  POWERS   147 

stick  his  staff  by  it,  place  his  hat  under  its  head,  or  his  cloak,  or 
break  brush  and  place  under  it.  They  shall  testify  that  care- 
lessness has  not  been  the  cause. 

The  laws  of  primitive  society  were  concerned 
almost  wholly  with  the  simple  pastoral  and  social 
customs  of  the  day.  They  reflect  faithfully  the 
crude  state  of  life.  They  dealt  with  acts  and  com- 
binations of  circumstances  which  are  unknown  to- 
day. The  intent  of  the  laws  was  to  keep  society 
going  smoothly,  and  as  far  as  possible  without  loss 
of  effort  or  wealth.  Doubtless  the  laws  succeeded 
in  that  intent.  We  have  no  right  to  scoff  at  their 
crudity. 

As  soon  as  it  was  found  that  government  was  in- 
adequate to  cope  with  changing  economic  and  indus- 
trial conditions,  the  laws  were  modified  accordingly. 
Sometimes  violent  revolution  was  the  resort,  for  in 
the  primitive  state  of  society  power  was  usually 
vested  in  an  autocrat  and  the  autocratic  minority 
could  not  be  displaced  or  controlled  by  the  orderly 
process  of  the  ballot,  as  in  a  modern  democracy. 

A  revolution  might  be  started  by  a  majority 
against  the  minority.  In  a  republic,  of  course,  such 
a  thing  is  unnecessary,  for  the  majority  has  the  power 
to  work  its  will  without  resort  to  violence. 

As  inventions  multiplied  the  lot  of  the  poor  work- 
ers was  improved,  and  the  serfs  became  more  en- 
lightened. They  became  discontented  with  their  lot 
and  made  successive  demands  upon  the  feudal  lords. 
In  the  desperate  struggle  for  existence  that  some- 


i48  THE  PARTY  OF  THE  THIRD  PART 

times  obtained,  the  law  of  self-preservation  brought 
on  bloody  turmoil  and  excesses,  in  the  name  of  eco- 
nomic betterment. 

Some  take  this  fact  to  mean  that  the  struggle  for 
existence  is  the  be-all  and  end-all  and  that  economic 
determinism  should  be  the  sole  factor  in  government. 
The  fallacy  of  this  will  be  discussed  in  a  subsequent 
chapter.  No  one  can  deny,  however,  that  one  of  the 
chief  problems  of  government  always  has  been  to 
adapt  itself  to  changing  economic  conditions. 

The  principal  divergence  in  opinion  between  social- 
istic and  republican  schools  of  thought  is  that 
Socialism  would  handle  the  economic  machinery  by 
government  ownership,  while  republicanism  would 
handle  it  by  private  ownership,  applying  govern- 
ment supervision  where  private  initiative  failed  to 
produce  efficient  and  satisfactory  results.  Repub- 
licanism denies  that  the  sole  end  of  government  is 
to  provide  the  material  necessities  for  its  people. 
It  believes  that  self-reliance  and  stamina  are  best 
preserved  by  encouraging  private  initiative.  Look- 
ing with  disfavor  upon  paternalism,  it  believes  that 
a  reasonable  amount  of  "root-hog-or-die"  tends  to 
develop  the  best  qualities  of  citizenship. 

Under  any  system  of  government,  however,  it 
must  be  recognized  that  if  the  administration  fails 
to  cope  with  new  economic  problems  in  a  compre- 
hensive and  intelligent  way,  it  will  fail,  and  possibly 
go  down  in  ruin. 

This  is  what  gives  us  our  political  rather  than  an 


GOVERNMENT  AND  POLICE  POWERS   149 

economic  form  of  government.  Starting  with  the 
obvious  proposition  that  some  sort  of  organization 
is  necessary  for  the  preservation  of  civilization,  his- 
tory has  proved  that  political  social  control  is  the 
only  workable  basis  of  union. 

Even  if  we  should  eliminate,  for  the  sake  of  argu- 
ment, the  element  of  patriotism  and  other  idealistic 
features  of  political  government,  and  regard  the 
question  from  a  cold-blooded  standpoint,  it  would 
soon  become  evident  that  the  political  unit  is  supe- 
rior to  the  economic  unit. 

In  the  first  place,  the  economic  group  must  be 
dependent  upon  society  as  a  whole  for  the  consump- 
tion of  its  products.  Even  a  monarch  would  be 
helpless  but  for  the  loyalty  and  co-operation  of  his 
subjects.  "No  man  liveth  unto  himself."  It  is  like 
whistling  against  the  wind  to  say  that  "all  society 
must  be  made  into  a  producing  class,"  because 
nobody  has  ever  devised  an  intelligible  method  of 
defining  absolute  production.  As  civilization  ad- 
vances specialization  increases,  and  we  have  primary, 
secondary,  and  tertiary  producers,  and  so  on.  We 
have  many  people  who  are  economically  superfluous, 
to  be  sure.  It  is  always  the  proper  duty  of  society  to 
purge  itself  of  drones.  We  have  many  people  who 
may  appear  to  be  economically  superfluous,  but  who 
are  nevertheless  performing  functions  that  are  de- 
manded by  primary  or  secondary  producers.  Even 
the  chair  pushers  on  the  Boardwalk  at  Atlantic  City 
are  organized  into  a  labor  union!  Let  the  reader 


iSo  THE  PARTY  OF  THE  THIRD  PART 

diagram  for  himself  the  remarkable  economic  scheme 
there  involved.  Who  can  satisfactorily  define 
production? 

While  it  will  always  be  the  proper  purpose  of 
society  to  cause  every  able-bodied  individual  to  do 
his  part  for  the  general  welfare,  it  is  obviously  im- 
possible to  bring  about  such  a  state  by  direct 
compulsion. 

It  is  plain  that  the  primary  economic  producers 
must  accommodate  themselves  to  the  rest  of  society 
upon  terms  of  mutual  good  will.  In  the  matter  of 
farming,  for  instance,  it  does  not  take  as  many  work- 
ers now  as  it  took  one  hundred  years  ago,  because 
modern  implements  have  enabled  the  individual 
farmer  to  take  care  of  a  much  larger  acreage  and 
yield.  Not  all  people  can  be  farmers.  Not  all  can 
be  brick  masons.  Not  all  can  be  fishermen.  Not  all 
can  be  miners.  The  tasks  have  to  be  divided  and 
subdivided.  Production,  under  normal  conditions, 
will  automatically  work  out  by  the  inexorable  law 
of  supply  and  demand,  the  proper  proportion  of 
primary  producers  compared  with  other  groups.  In 
abnormal  times,  as  existed  during  and  after  the 
World  War,  the  supply  and  demand  were  interfered 
with,  hence  the  inequalities  and  frictions  that  other- 
wise would  not  have  been  so  intense.  The  primary 
producers  must  depend  upon  all  of  society — the  gen- 
eral public — for  co-operative  support. 

In  the  second  place,  the  economic  producer  has  an 
inherent  obligation  to  co-operate  with  his  fellow  men. 


GOVERNMENT  AND  POLICE  POWERS    151 

It  is  not  sufficient  that  he  co-operate  with  the  mem- 
bers of  his  own  select  group.  He  must  regard  society 
as  a  whole.  When  people  are  cast  upon  a  desert 
island  they  are  inherently  equal  in  the  task  of  sus- 
taining the  community  life.  Fortunes  change.  The 
rich  become  poor  and  the  poor  become  rich,  accord- 
ing to  ability  or  industry  or  luck.  Establish  a  def- 
inite classification  of  men  to-day  and  a  regrouping 
becomes  necessary  to-morrow.  Society  as  a  whole  is 
in  a  state  of  constant  change  in  the  matter  of  its 
productive  members. 

The  essential  spirit  of  civilization,  according  to  Dr. 
Franklin  H.  Giddings,  is  nothing  more  nor  less  than 
a  passion  for  homogeneity — a  resistless  desire  of  the 
social  mind  to  secure  to  the  utmost  possible  degree 
sympathetic  like-mindedness  throughout  the  popu- 
lation. The  social  instinct  must  conquer  the  primi- 
tive love  for  power.  This  necessarily  means  that  the 
political  unit  must  be  supreme.  It  must  include, 
and  supersede,  as  far  as  government  is  concerned,  all 
economic  units.  Economic  government  must  be  sub- 
ject to  political  government  or  political  government 
must  vanish  altogether,  and  such  a  vanishing  would 
mean  the  disintegration  of  society  into  warring 
groups  that  would  grow  smaller  and  smaller  with 
the  inevitable  growth  of  selfishness  as  a  governing 
principle.  Force  is  the  background  of  law  and  gov- 
ernment, but  it  must  be  force  exercised  by  all  the 
people — not  by  certain  select  groups — or  it  must 
ultimately  fail. 


iS2  THE  PARTY  OF  THE  THIRD  PART 
We  quote  again  from  Giddings : 

By  bringing  allied  populations  together  in  one  embracing 
political  organization,  by  perfecting  the  machinery  of  govern- 
ment, by  eliminating  causes  of  antagonism,  civilization  has  also 
put  an  end  to  innumerable  forms  of  conflict,  to  innumerable 
unnoticed  wastes  of  energy,  and  so  has  liberated  for  other  expen- 
ditures enormous  stores  of  mental  and  physical  force. 

The  waste  of  energy,  caused  by  industrial  conflict, 
has  been  enormous  and  it  has  been  antisocial,  not 
only  in  the  materially  productive  sense,  but  in  the 
matter  of  good  will.  Industrial  conflict  has  given 
economic  class  groups  undue  prominence.  Govern- 
ment certainly  must,  and  does,  have  the  power  to 
eliminate  the  waste  and  useless  battle,  at  the  same 
time  advancing  the  welfare  of  the  producers  and 
bringing  the  contending  elements  together  so  they 
may  often  shake  hands  across  the  table.  The  pri- 
mary and  best  function  of  any  court  of  equity  is 
conciliation. 

"Most  practical  economic  questions  involve  di- 
rectly or  indirectly  the  question  of  governmental 
activity  in  economic  affairs,"  says  Charles  Jesse  Bul- 
lock of  Harvard  University,  and  he  declares  that  the 
first  duty  of  government  is  to  protect  persons  and 
maintain  order. 

He  also  points  out  that  many  of  the  old  restrictions 
upon  the  relations  of  employers  and  employees,  as 
well  as  upon  other  activities,  were  abolished  during 
the  first  half  of  the  nineteenth  century,  and  the 
laissez-faire  doctrine  became  popular.  But,  he  re- 


GOVERNMENT  AND  POLICE  POWERS   153 

minds  us,  the  old  restrictions  were  no  sooner  removed 
than  people  felt  obliged  once  more  to  governmental 
action  to  remedy  disorders  that  were  found  to  exist 
in  modern  civilized  life,  and  government  again 
stepped  in. 

The  antitrust  laws  of  recent  years  were  symptoms 
of  this  feeling.  So  also  is  the  adoption  of  tentative 
and  pragmatic  municipal  ownership.  As  pointed  out 
before,  however,  there  is  a  sharp  divergence  between 
state  or  municipal  ownership  and  state  supervision. 

The  industrial  court  is  an  inevitable  assertion  of 
the  necessity  of  remedying  a  very  widespread  and 
fundamental  disorder  which  is  not  only  a  cause  of 
material  waste  and  antisocial  friction,  but  a  cancer 
that  eats  at  the  very  roots  of  political  government 
itself.  It  deals  with  the  overpowering  and  over- 
shadowing issue  of  modern  democracy. 

Most  economists,  according  to  Professor  Bullock, 
now  hold  the  view  that  "government  should  extend 
its  functions  into  any  field  of  economic  activity  where 
the  best  results  can  be  secured  from  such  a  policy." 

That  does  not  mean  government  ownership,  nec- 
essarily. It  may  mean  government  supervision 
through  its  courts  or  commissions.  Take  your 
choice. 

In  calculating  the  proper  sphere  of  governmental 
interference  in  the  industrial  conflict,  it  must  be  re- 
membered that  there  are  important  factors  tending 
to  increase  that  conflict  as  time  goes  on,  rather  than 
to  decrease  it. 


154  THE  PARTY  OF  THE  THIRD  PART 

One  factor  is  the  dehumanizing  of  industry  wrought 
by  specialization.  When  a  man  stands  at  a  die  and 
makes  nothing  but  a  certain  small  part  of  an  auto- 
mobile engine  all  day  he  becomes  a  part  of  that 
machine  and  loses  his  individuality.  The  creative 
instinct  that  stimulated  the  primitive  artisan  is 
smothered  in  quantity  production.  With  quantity 
production  comes  the  lack  of  personal  contact  be- 
tween employer  and  employee.  Class  consciousness 
and  suspicion  are  nurtured  in  such  atmosphere. 
Unless  there  is  a  corrective  agency  the  worker  is 
bound  to  feel  that  he  is  merely  an  insignificant  cog 
in  a  colossal  and  heartless  machine.  Industrial 
courts,  with  their  concomitant  functions,  can  remedy 
this  by  going  into  the  living  and  working  conditions 
and  promoting  the  propaganda  of  employee  repre- 
sentation, conciliation,  and  a  renewal  of  personal 
contact.  They  can  act  as  the  lubricant  between  the 
clashing  groups.  It  is  contended  that  such  affairs 
should  be  left  to  private  initiative.  But  private  in- 
itiative has  not  responded  generously  enough,  and 
the  warfare  has  become  so  bitter  that  it  threatens 
the  lives  of  the  people.  The  people  must  have  power 
to  give  dignity  and  force  to  the  machinery  of  indus- 
trial adjustment.  Such  machinery  may  make  it  pos- 
sible for  laborers  to  pursue  some  activity  out  of  hours 
to  develop  self-expression  and  individuality,  instead 
of  spending  such  hours  under  the  tutelage  of  radical 
leaders  in  the  assimilation  of  suspicion  and  hate. 

In  the  earliest  forms  of  government  the  executive 


GOVERNMENT  AND  POLICE  POWERS   155 

monopolized  the  field.  He  was  the  court  of  first  and 
last  resort.  As  civilization  developed,  the  executive 
took  on  some  of  the  character  of  the  judiciary.  He 
recognized  the  need  of  a  code  and  he  handed  down 
laws.  Some  of  the  Roman  emperors  exemplified 
the  coming  of  the  judge  into  society  as  a  guiding 
force. 

The  history  of  Anglo-Saxon  laws  is  blurred  in  the 
mists  of  the  ages.  Prior  to  the  Norman  conquest  the 
Anglo-Saxons  did  not  make  laws,  it  is  said — they 
merely  published  abroad  what  already  existed.  It 
did  not  occur  to  them  that  they  were  exercising  any 
creative  legislative  function.  When  the  Norman 
kings  came  they  introduced  the  Roman  idea  of  execu- 
tive-made laws.  This  gave  impetus  to  government 
which  may  have  been  needed  to  stir  people  out  of 
their  complacency  and  subserviency  to  tradition. 
But  they  finally  rebelled  when  the  instinct  of  self- 
government  and  liberty  came  to  the  top,  and  they 
assertively  formulated  a  set  of  demands  known  as 
the  Magna  Charta. 

This  charter,  wrested  from  the  kings,  dealt  with 
a  number  of  affairs  intimately  connected  with  the 
economic  welfare  of  the  people,  as  well  as  with  other 
things.  Among  the  subjects  treated  were  the  forest 
laws,  uniformity  of  weights  and  measures,  freedom 
of  commerce  to  foreign  merchants,  and  matters  of 
tenants'  dues.  Religious  freedom  was  one  of  the 
topics  treated.  Various  civil  liberties  were  demanded. 

Gradually,  out  of  such  efforts  as  this  the  process 


156  THE  PARTY  OF  THE  THIRD  PART 

of  legislation  was  evolved.  The  old  formula  of  the 
sleeping  Orient — "It  is  written" — was  no  longer 
sufficient.  The  people  took  the  initiative. 

In  the  process  of  evolution  the  government  natu- 
rally divided  itself  into  three  branches — executive, 
judicial,  and  legislative.  With  the  onward  march  of 
autonomy  the  legislative  branch  naturally  has  grown 
in  importance,  for  it  represents  the  efforts  of  the 
people  in  ruling  themselves. 

And  what  is  law? 

It  has  been  well  said  that  "law  is  the  crystalliza- 
tion of  public  opinion."  This  applies,  of  course,  to 
settled  and  permanent  opinion — not  temporary  gusts 
of  passion  or  prejudice. 

Temporal  law  has  nothing  sacred  or  immutable 
about  it.  Law  must  be  amenable  to  human  needs, 
or  it  fails. 

If  the  fundamental  constitution  of  a  nation  does 
not  accommodate  itself  to  new  economic  conditions, 
so  as  to  protect  the  welfare  of  the  general  public,  it 
is  a  sign  that  the  constitution  needs  to  be  changed. 
And  the  way  to  constitutional  change  is  paved  by 
statutory  enactments.  That  is  the  way  of  a  republic. 
The  legislature  is  the  advance  guard,  blazing  new 
paths,  and  the  judiciary  consolidates  the  worth-while 
gains.  Sometimes  legislatures  have  to  retrace  their 
paths  and  acknowledge  mistakes,  but  usually  they 
point  out  something  constructive  that  was  not  there 
before.  And  when  legislation  comes  as  a  perfectly 
obvious  method  of  preventing  social  and  economic 


GOVERNMENT  AND  POLICE  POWERS   157 

friction,  it  is  fulfilling  the  normal  and  necessary  func- 
tion of  democracy.  If  it  seeks  to  give  justice  to  the 
contending  factions,  prohibits  nothing  but  the  mani- 
festly harmful  acts,  and  prevents  waste  and  suffering, 
it  is  amply  justified.  It  is  accomplishing  the  purposes 
for  which  government  was  instituted  among  men — 
to  secure  their  lives,  liberty,  and  pursuit  of  happiness. 
Thus  is  a  democratic  government  evolved. 

If  the  political  unit  is  supreme,  including  the  eco- 
nomic units — if  economic  organization  is  subordinate 
to  political  government — then  it  must  necessarily 
follow  that  the  police  power  of  democratic  govern- 
ment properly  extends  over  the  field  of  industry  and 
commerce.  The  extension  of  police  power  must  nec- 
essarily keep  pace  with  the  extension  of  special- 
interest  organization. 

Reviewing  the  gradual  formation  of  laws,  and  in- 
quiring into  the  question  of  how  far  laws  may  inter- 
fere with  that  which  we  call  "individual  liberty" — 
though  the  word  is  sometimes  abused — we  find  that 
police  powers  have  a  broad  scope  and  significance. 

The  Supreme  Court  of  the  United  States  has  given 
us  this  revealing  definition: 

They  are  nothing  more  or  less  than  the  powers  of  government 
inherent  in  every  sovereignty  to  the  extent  of  its  dominions. 
And  whether  a  state  passes  a  quarantine  law,  or  a  law  to  punish 
offenses,  or  to  establish  courts  of  justice,  or  requiring  certain 
instruments  to  be  recorded,  or  to  regulate  commerce  within  its 
own  limits,  in  every  case  it  exercises  the  same  power — that  is 
to  say,  the  power  of  sovereignty,  the  power  to  govern  men  and 
things  within  the  limits  of  its  dominion.  It  is  by  virtue  of  this 
power  that  it  legislates. 


iS8  THE  PARTY  OF  THE  THIRD  PART 

Freund,  in  The  Police  Power,  says: 

The  police  power  restrains  and  regulates,  for  the  promotion 
of  the  public  welfare,  the  natural  or  common  liberty  of  the  citizen 
in  the  use  of  his  personal  faculties  and  of  his  property. 

He  says,  further: 

The  maxim  of  this  power  is  that  every  individual  must  submit 
to  such  restraints  in  the  exercise  of  his  liberty  or  of  his  rights  of 
property  as  may  be  required  to  remove  or  reduce  the  danger  of 
the  abuse  of  these  rights  on  the  part  of  those  who  are  unskillful, 
careless,  or  unscrupulous. 

In  the  case  of  Noble  State  Bank  vs.  Haskell,  219 
U.  S.  no  (1911),  Mr.  Justice  Holmes  of  the  Supreme 
Court  hands  down  this  opinion: 

The  police  power  extends  to  all  the  great  public  needs.  It 
may  be  put  forth  in  aid  of  what  is  sanctioned  by  usage,  or  held 
by  the  prevailing  morality  or  the  strong  and  preponderant 
opinion  to  be  greatly  and  immediately  necessary  to  the  public 
welfare. 

Every  time  laws  are  made  that  set  forth  new  fields 
of  police  power,  there  is  more  or  less  objection  on  the 
ground  that  personal  liberty  is  being  infringed  upon. 
But  each  time,  in  the  case  of  justified  laws,  it  is  found 
that  the  principle  of  the  greatest  good  to  the  greatest 
number  vindicates  the  enactment.  That  principle  is 
triumphant  and  must  prevail. 

Going  back  to  the  very  beginnings  of  government, 
and  observing  its  evolution — weighing  the  political 
factor  against  the  economic  and  the  police  power 
against  the  laissez  faire  of  industry — inquiring  into 
the  derivation  of  governmental  power,  we  are  im- 
pelled to  believe  that  the  public  does  have  the  right 


GOVERNMENT  AND  POLICE  POWERS   159 

to  limit  the  so-called  liberties  of  the  individual  when- 
ever it  is  shown  that  restriction  of  those  liberties  is 
in  the  interest  of  the  public.  Regardless  of  prejudices, 
traditions,  and  customs,  the  weight  of  public  policy 
finally  must  prevail.  The  fear  that  an  improper  use 
would  ever  be  made  of  the  police  power  is  more  than 
offset  by  the  knowledge  that  public  opinion  always 
registers  in  the  courts.  The  steady  progress  of  courts 
is  indicated  by  the  plain  probability  that  twenty-five 
years  ago  a  law  such  as  has  been  passed  by  Kansas 
might  not  have  been  held  constitutional  by  the 
courts,  in  spite  of  early  decisions  that  seem  favorable. 
A  few  very  pertinent  observations  upon  the  matter 
of  police  powers  as  applied  to  the  Kansas  Industrial 
Court  have  been  made  by  F.  Dumont  Smith,  of 
Hutchinson,  Kansas,  one  of  the  able  lawyers  whose 
study  of  the  industrial  law  has  been  most  valuable 
to  us.  Some  of  Mr.  Smith's  cogent  points  are: 

No  court  has  ever  attempted  to  define  the  limitations  of  the 
police  power  of  a  state.  It  is  the  broadest  and  most  undefined  of 
all  the  governmental  powers,  because  it  is  the  power  to  which 
all  other  governmental  functions,  bodies,  and  tribunals  are 
subordinate  and  subservient.  In  fact,  the  police  power  is  the 
final  end  and  aim  of  civilized  government.  It  is  the  power  to 
which  all  other  powers  lend  their  support.  Edmund  Burke  once 
said  that  the  whole  state  and  power  of  England,  its  kings,  lords, 
House  of  Commons,  its  army  and  its  navy,  were  constituted  and 
maintained  for  the  purpose  of  getting  twelve  honest  men  into  a 
jury  box — in  other  words,  a  settlement  of  dispute  by  law. 

But  the  institution  and  processes  of  the  courts  exhaust  but  a 
portion  of  the  police  power  of  the  state.  A  vast  reserve  of  the 
police  power  remains  to  be  administered  by  the  executive  arm, 
what  is  commonly  known  as  the  administrative  branch  of  the 


160  THE  PARTY  OF  THE  THIRD  PART 

government.  And  let  me  say  here  that  a  dictum  of  an  early- 
English  court,  attempting  to  distinguish  between  the  adminis- 
tration of  justice  as  an  independent  attribute  of  the  English 
Constitution  and  the  police  power,  which  was  the  King's  pre- 
rogative, has  misled  many  law  writers  into  separating  the  ad- 
ministration of  justice  from  the  general  police  power. 

Courts  administer  police  power  by  certain  long-recognized 
formulae,  but  it  is,  nevertheless,  the  police  power  of  the  state 
that  is  thus  exercised.  But  after  the  courts  have  functioned, 
there  remains  a  vast  domain  of  police  power,  exercised  by  the 
administrative  arm,  which  deals  with  the  general  welfare  of  the 
people;  public  health,  the  maintenance  of  public  peace,  public 
morals,  and  even  the  comfort  and  convenience  of  the  citizens. 
All  of  these  are  under  the  watchful  exercise  of  the  police  power. 
There  is  this  clear  distinction  between  the  exercise  of  the  police 
power  by  a  court  and  by  the  administrative  arm.  The  court  is 
inert  until  its  jurisdiction  is  sought  and  invoked  by  appropriate 
formulae.  A  court  cannot  go  out  and  seize  a  criminal  and  try 
him  until  a  complaint  has  been  presented  and  a  warrant  issued. 
The  court  cannot  collect  your  debt  until  a  complaint  has  been 
filed  against  the  debtor.  A  court  cannot  do  equity  until  the 
equitable  jurisdiction  has  been  set  in  motion  by  an  appropriate 
bill.  But  the  administrative  arm  acts  ex  propria  vigore.  It  acts 
without  complaint,  without  warning,  and  without  investigation. 
It  may  act  upon  suspicion  or  surmise.  It  has  inquisitorial  power; 
power  to  subpoena  witnesses,  and  to  compel  the  production  of 
books  and  papers  without  any  complaint  being  filed,  wherein  it 
differs  from  a  court. 

You  cannot  swear  a  witness  in  court  until  there  is  a  legal 
controversy  before  the  court.  The  exercise  of  the  police  power 
by  the  administrative  arm  is  swifter  of  execution,  speedier  in 
action,  and  presents  many  advantages  over  the  rule-hampered 
action  of  the  court.  That  is  the  reason  why  we  decided  to  make 
the  Industrial  Court  an  administrative  body  rather  than  a 
judicial  body.  As  a  court  it  would  have  had  advantages.  It 
could  punish  for  contempt;  it  could  execute  its  own  orders. 
You  cannot  confer  administrative  functions  upon  a  court,  but 
you  can  confer  quasi-judicial  powers  upon  an  administrative 
body,  the  power  to  investigate,  to  take  evidence,  to  deliberate, 


GOVERNMENT  AND  POLICE  POWERS   161 

to  weigh,  and  to  find  the  facts.  These  powers  can  be  conferred 
upon  a  legislative  tribunal,  or  upon  its  arm,  a  committee  sitting 
for  the  purpose  of  investigation. 

We  have  had  a  distinguished  example  of  it  recently  in  the 
committee  of  the  Senate  of  the  United  States  which  has  been 
investigating  campaign  expenditures — investigating  them  so 
thoroughly  that  many  earnest  workers  in  both  parties  have 
found  themselves  without  a  job  as  a  result  of  this  investigation. 
This  investigation,  with  its  illuminating  evidence,  would  have 
been  impossible  in  a  court. 

The  administrative  arm  can  anticipate  labor  troubles  and 
strikes  by  investigating  the  conditions  surrounding  the  mine  or 
factory  where  disputes  and  industrial  troubles  are  reaching  an 
acute  stage.  Before  a  strike  has  been  called,  before  there  is  an 
overt  act  of  industrial  warfare,  it  can  publish  its  findings  so  that 
the  public  will  know  whether  the  worker  is  getting  a  fair  wage, 
working  reasonable  hours,  giving  an  honest  day's  work  for  his 
wage,  and  so  that  the  public  can  know  whether  the  business  of 
the  employer  can  reasonably  stand  shorter  hours  or  an  advance 
in  wages,  without  increasing  the  price  that  he  charges  the  con- 
sumer. In  fact,  if  these  inquisitorial  powers  of  the  court  were 
all  its  powers,  these  things  were  all  that  it  could  do,  it  would  be 
worth  the  cost.  Publicity,  like  the  sunlight,  is  a  great  germicide. 
No  sociological  wrong  can  stand  the  light  of  day.  The  truth 
will  kill  it.  If  everyone  knew  the  wholesale  and  the  retail  cost 
of  the  articles  which  he  buys,  there  would  be  no  profiteering. 

Whatever  doubts  there  may  be  as  to  the  constitutionality  of 
some  parts  of  the  Industrial  Court  law,  no  one  has  ever  ques- 
tioned the  right  of  the  state,  under  its  police  power,  to  establish 
this  administrative  body  and  to  give  it  these  inquisitorial  powers. 

It  is  true  that  Mr.  Howat,  who  is  now  in  contempt  for  refusing 
to  obey  the  process  of  the  court  and  to  testify,  has  appealed  to 
the  Supreme  Court  of  the  United  States,  but  that  court,  in  the 
Interstate  Commerce  case,  in  the  250  U.  S.,  has  decided  every 
question,  raised  by  Mr.  Howat's  appeal,  against  him. 

Coming  now  to  the  question  of  police  power,  it  is  the  broadest, 
the  most  unlimited,  the  most  illimitable  of  all  the  powers  of 
government.  Outside  of  a  limited  number  of  cases  where  the 
police  power  affects  the  rights  of  property,  the  right  to  bear 


i62  THE  PARTY  OF  THE  THIRD  PART 

arms,  public  assemblage,  and  the  freedom  of  religion,  wbere  the 
police  powers  are  limited  by  certain  amendments  to  the  condi- 
tions, the  only  boundaries,  the  only  circumscriptions  of  that 
police  power,  are  that  the  exercise  of  it  must  be  reasonable  and 
that  it  must  tend  to  public  welfare.  No  respectable  court  and 
no  text  writer  has  ever  attempted  to  go  farther  than  this  in 
setting  boundaries  to  the  power,  and  each  case  is  decided  upon 
the  particular  and  instant  question  of  fact. 

It  may  be  said  that  the  police  power  is  the  end  and  aim  and 
final  object  of  all  civil  government,  because  the  end  and  object 
of  all  civil  government  is  to  promote  the  general  welfare  and 
happiness  of  the  citizen;  and  it  is  with  that  that  the  police 
power  more  closely  deals. 

The  police  power  greets  you  at  the  threshold  of  life,  where  it 
prescribes  the  qualifications  of  the  doctor  and  the  nurse  who 
bring  you  into  the  world.  It  follows  you  to  the  tomb,  where  it 
regulates  the  cemetery  where  your  ashes  are  finally  interred. 
And  during  all  that  interval  from  the  first  puny  wail  of  the  new- 
born child  to  the  death  rattle  of  the  dying,  it  surrounds  you 
every  moment  with  its  invisible,  ever-present  protection.  Wak- 
ing or  sleeping,  alone  or  in  company,  in  the  crowded  street  or 
on  the  lonely  prairie,  the  police  power  is  there,  protecting  not 
merely  your  life,  your  liberty,  and  your  peoperty,  but  protect- 
ing your  health,  the  morals  of  your  community,  and  safeguarding 
the  comfort  and  convenience  of  your  daily  life. 

The  police  power  is  the  only  power  that  can  take  and  destroy 
private  property  for  the  public  benefit,  without  compensation 
to  the  owner,  as  where  it  destroys  an  unsafe  or  unsanitary 
building.  It  is  the  only  power  that  can  destroy  the  sanctity  of 
a  contract  which  the  Constitution  says  shall  be  held  sacred.  It 
is  the  only  power  that  can  override  a  treaty  which  the  Consti- 
tution says  shall  be  the  supreme  law  of  the  land,  as  was  held  in 
the  New  Orleans  quarantine  cases,  where  a  health  regulation  of 
the  city  of  New  Orleans  set  aside  a  treaty  stipulation  between 
America  and  France.  It  is  the  most  comprehensive  and  most 
minute  of  all  the  powers  of  government.  It  protects  the  cattle 
of  the  Kansas  farmer  against  Texas  fever,  and  it  protects  the 
migratory  birds  against  undue  and  continuous  slaughter.  It 
regulates  the  length  of  time  that  the  mill  whistle  may  blow 


GOVERNMENT  AND  POLICE  POWERS   163 

without  undue  disturbance  to  the  peace  and  quiet  of  the  neigh- 
borhood, and  it  stops  the  great  liner  with  its  thousands  of  pas- 
sengers, at  the  threshold  of  the  country,  until  every  individual 
has  proven  his  right  to  be  admitted  upon  the  ground  of  his 
physical  and  moral  healthfulness. 

It  is  the  most  flexible  of  the  governmental  powers,  adjusting 
itself  almost  instantly  to  every  change  of  conditions.  The  police 
power,  which  adequately  regulated  the  movements  of  the  stage 
coach,  was  found  sufficient  without  any  extension  of  power,  by 
merely  adapting  established  principles  to  new  conditions,  to 
regulate  the  railroads,  the  steamboats,  and  the  automobile,  and 
shortly  it  will  reach  its  long  arm  into  the  sky  and  regulate  the 
air  lanes  of  the  aviator.  Every  time  a  new  and  dangerous 
mechanism  is  invented,  whether  for  labor  or  for  pleasure,  the 
police  power  seizes  its  control  and  regulates  it  for  the  safety 
of  the  public. 

Its  two  greatest  functions  are  the  protection  of  the  public 
health  and  the  public  peace,  and  these  are  the  foundations  upon 
which,  mainly,  the  power  of  the  Industrial  Court  rests.  In  the 
first  place,  the  legislature  defines  the  necessaries  of  life  as  food, 
fuel,  and  clothing.  This  is  not  a  legislative  fiat;  it  simply  recog- 
nizes the  primal  necessities  of  life  in  the  temperate  zone.  A 
man  may  live,  love,  and  be  happy  in  a  tent,  a  cave,  or  a  dugout, 
but  to  be  well,  to  be  healthy,  he  must  have  food,  fuel,  and 
clothes.  The  state  is  not  concerned  with  whether  a  man  has 
one  suit  of  clothes  or  a  dozen,  one  meal  a  day  or  five.  It  is  not 
concerned  with  whether  he  has  fuel  enough  to  warm  a  ten-room 
house  or  one  room.  But  it  is  concerned,  and  the  public  health 
demands,  that  every  family  shall  have  so  much  food,  so  much 
fuel,  and  so  much  clothing  as  shall  maintain  its  health,  keep 
it  in  decent  comfort,  and  provide  for  the  sturdy  upbringing 
of  the  future  of  the  race. 

Whenever  a  strike,  a  shutdown,  or  a  lockout  threatens  such  a 
shortage  in  these  necessities  as  endangers  the  public  health, 
then  the  state  has  the  same  interest  in  the  strike  or  the  lockout 
that  it  has  in  an  approaching  epidemic  of  contagious  disease. 
The  state  need  not  wait  until  smallpox  or  yellow  fever  has 
invaded  a  community.  It  may  quarantine  against  these  evils 
far  in  advance,  prohibit  persons  coming  from  an  infected  com- 


i64  THE  PARTY  OF  THE  THIRD  PART 

munity  from  entering  the  district  where  the  public  are  yet 
whole.  It  may  shut  up  an  infected  family  within  its  dwelling 
in  definitely,  to  protect  the  whole  from  the  infection.  This  pro- 
hibition against  any  interference  with  the  continued  adequate 
production  and  distribution  of  the  necessaries  of  life  applies 
equally  to  the  employer  and  to  the  employee. 

But  there  is  another  police  power  equally  important,  and  that 
is  the  protection  of  the  public  peace.  If  a  strike  of  any  consider- 
able size  endangers  the  public  peace,  the  police  reserves  are  put 
on  duty;  the  sheriff  swears  in  a  swarm  of  deputies;  frequently 
the  militia  is  called  out;  nearly  always  there  is  bloodshed,  loss 
of  life,  destruction  of  property;  in  fact,  these  things  are  almost 
inevitable.  They  have  come  to  be  regarded  as  an  integral  part 
of  the  strike,  inevitable  factors  of  this  private  warfare,  just  as 
the  killing  and  maiming  of  man  is  inevitable  in  public  warfare. 
The  state  has  a  right  to  anticipate  violence  and  prevent  it,  as 
well  as  punish  it  after  the  act.  If  I  threaten  our  chairman  with 
violence  he  can  have  me  bound  over  to  keep  the  peace.  In  fact, 
there  is  now  in  the  courts  power  of  prevention  of  such  breaches 
of  the  peace  by  injunction.  It  is  a  power  that  has  always  been 
questioned,  often  denied,  but  generally  upheld;  but  usually  the 
power  of  the  court  cannot  be  invoked  until  the  danger  line  is 
reached,  until,  in  effect,  there  has  been  an  overt  act  of  violence, 
interfering  with  the  lawful  possession  and  operation  of  the  em- 
ployer's property.  So  this  law  says  that  whenever  there  is  a 
strike,  or  the  danger  of  a  strike,  that  threatens  the  public  peace 
of  a  community,  this  court  shall  at  once  begin  to  function;  it 
shall  examine  the  merits  of  the  controversy,  it  shall  find,  deter- 
mine, and  publish  who  is  right  and  who  is  wrong;  it  will  ascer- 
tain and  announce  whether  the  workmen's  hours  shall  be  shorter, 
whether  his  wage  shall  be  higher,  whether  the  employer  of  the 
workingman  is  entitled  to  a  higher  price  for  his  product  in  order 
to  pay  such  higher  wages. 

It  would  seem  that  the  police  powers  which  have 
been  sanctioned  by  the  legislatures  and  interpreted 
by  the  courts  are  sufficient  for  the  structure  of  a 
civilization  which  contains  as  its  essence  the  protec- 


GOVERNMENT  AND  POLICE  POWERS  165 

tion  of  society.  The  weight  of  public  opinion,  under 
conditions  of  growing  economic  and  industrial  power, 
unquestionably  supports  the  abolition  of  strikes  that 
are  injurious  to  the  public  welfare.  No  one  can 
doubt  that  for  an  instant.  The  conclusion,  therefore, 
is  plain.  The  Industrial  Court,  established  under  the 
unimpeachable  powers  of  the  state,  and  supported 
by  a  logical  train  of  governmental  developments,  is 
the  logical  answer  to  the  growing  industrial  problem. 
It  has  been  clearly  demonstrated: 

First,  that  government  is  ultimately  and  cumula- 
tively what  people  make  it  and  what  they  want  it 
to  be,  regardless  of  tradition  or  precedent  or  tem- 
porary autocracies. 

Second,  that  the  police  power  of  government  is  its 
most  important  function. 

Third,  that  the  police  power  of  government  has  a 
clearly  legitimate  and  proper  domain  in  industrial 
disputes,  and  may  be  justly  invoked. 

Fourth,  that  the  growing  complexity  of  civilization 
has  made  it  necessary  to  bring  police  power  to  bear 
in  new  fields  hitherto  considered  private  domain. 

Therefore  the  people,  for  whose  benefit  govern- 
ment exists,  may  extend  the  arm  of  government  and 
regulate  any  activity  that  threatens  their  lives  or 
health.  If  they  could  not  do  so  it  is  plain  that  gov- 
ernment would  be  an  abject  failure. 

Hon.  George  W.  Wickersham,  in  the  annual  ad- 
dress before  the  New  Hampshire  Bar  Association,  in 
its  1920  gathering,  discussed  the  Kansas  Industrial 


166  THE  PARTY  OF  THE  THIRD  PART 

Court  law  with  particular  reference  to  the  police 
powers  of  government,  and  gave  an  exceptionally 
brilliant  and  instructive  exposition  of  the  precedents 
that  argue  for  and  against  the  law.  In  one  of  his 
utterances  he  made  the  observation  that  the  Kansas 
law  was  a  long  step  toward  state  Socialism,  basing 
his  statement  upon  the  theory  that  the  assertion  of 
police  power,  when  carried  to  an  extreme,  would 
eventually  bring  about  complete  government  con- 
trol over  private  enterprise  and  then  state  owner- 
ship. 

Not  wishing  to  presume  to  take  issue  with  Mr. 
Wickersham  on  my  own  authority,  I  would  never- 
theless, call  attention  again  to  the  very  pertinent 
point  made  by  Mr.  F.  Dumont  Smith,  who  takes 
the  general  ground  that  police  power,  which  is  in- 
herent in  the  Kansas  Industrial  Court  law,  is  in 
reality  an  emergency  resort,  and  not  a  permanent 
invasion  of  private  initiative  such  as  would  likely 
lead  to  paternalism. 

It  is  true  that  the  court  has  a  continuous  function 
of  smoothing  industrial  relations,  but  the  particular 
function  that  finds  expression  in  stopping  strikes 
and  fixing  wage  scales  is  an  emergency  power  and 
not  one  that  may  be  developed  into  permanent  price 
fixing  or  tyrannical  invasion  of  personal  rights.  The 
fear  that  such  powers  would  eventually  find  expres- 
sion in  the  fixing  of  price  and  absolute  control  of  farm 
products  would,  therefore,  seem  to  be  unfounded,  for 
it  would  be  inconceivable  that  there  could  be  such 


GOVERNMENT  AND  POLICE  POWERS   167 

a  complete  tie-up  of  food  products  by  farmers  as  to 
threaten  the  lives  and  health  of  the  people. 

The  chapter  on  "Strikes,"  elsewhere  in  this  book, 
as  well  as  other  chapters,  explains  why  this  court, 
under  police  powers,  may  prevent  or  prohibit  a  strike 
in  an  essential  industry  and  still  be  inoperative  in 
the  case  of  mere  quitting  of  work.  Mr.  Wickersham 
also  brings  out  this  point  very  clearly.  Perhaps 
there  is  an  analogy  that  runs  all  through  the  workings 
of  the  court — namely,  that  the  extent  of  any  given 
activity  or  condition  certainly  does  affect  its  legiti- 
macy. Of  course,  discrimination  must  be  used  so 
that  the  principle  of  police  power  may  not  be  carried 
to  an  extreme. 

Mr.  Wickersham  himself  answers  the  fears  of  those 
who  hold  up  the  bogey  of  "state  Socialism"  when  he 
quotes  the  keynote  utterance  of  Aristotle  upon  the 
police  power: 

All  governments  rest  upon  the  principle  of  self-preservation, 
and  at  times  extreme  measures  must  be  allowed. 

That  means  in  case  of  emergency. 

There  can  be  no  emergency  expressed  in  state 
Socialism,  for  that  is  a  settled  form  of  government. 

The  virtue  of  the  Industrial  Court  as  affecting 
grievous  industrial  disputes  is  its  potential  ability 
held  in  reserve  for  emergencies.  That  government 
should  have  that  potential  ability  would  seem  to  be 
almost  self-evident. 


XI 

INVISIBLE    GOVERNMENTS 

SHALL  government  be  by  the  people  as  a  whole 
or  shall  it  be  by  organized  interests? 
Leon  Jouhaux,  former  secretary  of  the  Con- 
federation General  du  Travail  (General  Federation  of 
Labor,  France),  says: 

The  C.  G.  T.  forms  the  new  society  within  the  shell  of  the 
old.  ...  It  proposes  to  become  the  local  administrator  and 
regulator  of  production  in  the  new  society. 

His  description  of  syndicalist  or  communist  doc- 
trine is  authoritative,  and  in  line  with  the  principles 
of  Marx  and  Lenin. 

They  base  their  conception  of  government  upon 
the  so-called  law  of  economic  determinism,  which  is 
stated  thus: 

The  thoughts  and  actions  of  men  are  determined  by  the 
manner  in  which  they  obtain  their  living. 

Abner  E.  Woodruff,  who  upholds  this  theory, 
translates  it  thus: 

Carried  over  into  the  fields  of  historical  economics  and  ap- 
plied to  the  science  of  sociology,  this  law  is  translated  into  the 
theory  of  the  materialist  conception  of  history,  which  declares 


INVISIBLE  GOVERNMENTS  169 

that  all  the  social  phenomena  in  any  historical  epoch  may  be 
explained  upon  the  basis  of  the  method  of  wealth  production 
and  exchange  existing  at  that  time. 

The  syndicalist  and  communist  base  their  whole 
theory  of  government  upon  this  idea. 

If  this  line  of  research  seems  too  abstract  for  the 
discussion  of  the  everyday  labor  problem,  it  would 
be  well  to  remember  that  this  philosophy  is  found  in 
hundreds  of  bunk  houses  and  "jungles"  where  the 
I.  W.  W.  gather  and  discuss  their  doctrines.  The 
above  is  taken  from  a  book  called  The  Advancing 
Proletariat,  which  is  used  in  great  numbers  as  propa- 
ganda by  the  radical  labor  groups.  If  the  average 
American  citizen  is  to  understand  the  great  unrest, 
the  tides  of  radicalism  that  are  at  work,  and  the 
inner  meaning  of  the  "  boring  from  within,"  he  must 
understand  the  food  upon  which  the  radicals  have 
been  feeding.  If  he  does  not  understand  this  food 
he  cannot  understand  the  meaning  of  a  strike  from 
the  radical's  viewpoint.  He  cannot  understand  the 
radical's  idea  about  government.  Further,  this  book 
says  of  the  proletariat: 

It  realizes  that  the  proletariat,  operating  the  machinery  of 
production,  and  really  in  possession  of  the  wealth  of  the  world, 
is  in  a  position  to  dictate  the  terms  of  life  to  all  society  if  it 
merely  secures  the  consent  and  co-operation  of  the  members  of 
its  own  class. 

And  then,  speaking  of  continuing  production, 
which,  it  holds,  is  the  only  test  of  governmental  fit- 
ness, it  says: 


ITO  THE  PARTY  OF  THE  THIRD  PART 

Voting  en  masse  at  the  polls  is  no  evidence  whatsoever  of  such 
ability,  and  to  teach  this  class  that  its  way  to  freedom  lies  pri- 
marily through  the  ballot  box  is  a  most  miserable  miseducation. 

And  then,  to  clinch  the  argument  against  the  ballot 
box,  the  book  says: 

In  the  fields  of  politics  the  program  of  the  proletariat  should 
be  "Pressure  rather  than  Participation,"  a  program  heretofore 
ably  pursued  by  the  Plutocrats. 

In  this  short  paragraph  is  condensed  a  remarkably 
vivid,  if  crude,  picture  of  the  development  of  the 
"invisible  government"  in  the  United  States,  which 
heretofore  has  been  monopolized  by  the  huge  capi- 
talistic interests.  It  shows  at  a  glance  how  unre- 
strained capitalistic  greed  is  the  breeder  of  Bolshe- 
vism. It  shows  a  strange  and  unholy  alliance  of  pur- 
pose between  red-minded  radicals  and  red-handed 
profiteers.  It  shows  a  sardonic  and  sinister  desire 
to  ride  roughshod  over  the  rights  of  the  majority 
and  disregard  the  principle  of  electoral  franchise. 
This  doctrine  would  have  the  country  rush  from  one 
bad  extreme  to  the  other  bad  extreme. 

Is  there  any  danger  of  that? 

Before  dismissing  the  proposition  as  absurd  it  is 
well  enough  to  study  the  whole  field  of  syndicalism 
and  decide  whether  some  of  its  implications  have 
been  accepted  without  accepting  the  form. 

Gathering  the  preceding  quotations  in  connection 
with  the  abundance  of  similar  propaganda  now  cur- 
rent, we  see  that  the  syndicalist  theory  of  govern- 
ment is  based  wholly  and  frankly  upon  materialism. 


INVISIBLE  GOVERNMENTS  171 

It  is  one  thing  to  recognize  the  presence  of  eco- 
nomic determinism  in  society.  It  is  an  entirely  dif- 
ferent thing  to  advocate  that  government  be  founded 
upon  the  theory. 

James  Madison,  "Father  of  the  Constitution," 
and  our  fourth  President,  said  in  the  Federalist: 

The  most  common  and  durable  source  of  factions  has  been  the 
various  and  unequal  distribution  of  property.  A  landed  interest, 
a  manufacturing  interest,  a  mercantile  interest,  a  moneyed  in- 
terest, with  many  lesser  interests,  grow  up  of  necessity  in  civilized 
nations  and  divide  them  into  different  classes,  actuated  by 
different  sentiments  and  views.  The  regulation  of  these  various 
interfering  interests  forms  the  principal  task  of  modern  legisla- 
tion, and  involves  the  spirit  of  party  and  faction  in  the  necessary 
and  ordinary  operations  of  government. 

It  might  almost  be  said  that  he  foresaw  the  neces- 
sity of  industrial  courts. 

The  great  Madison  well  realized,  and  even  proph- 
esied, the  perils  of  controversies  that  were  bound  to 
involve  this  nation  in  connection  with  its  economic 
development,  and  yet  he  did  not  dream  of  making 
economic  factors  the  motive  power  and  be-all  of 
government. 

Economic  factors  are  centrifugal  and  interrepel- 
lent,  as  he  indicates,  whereas  government  in  a  suc- 
cessful democracy  requires  the  common  denominator 
of  political  citizenship — a  thing  which  all  may  have 
regardless  of  occupation.  Political  government  is 
centripetal;  it  holds  together.  Economic  govern- 
ment is  disruptive.  Economic  determinism  in  gov- 
ernment is  an  explosive  force,  especially  in  a  society 


i72  THE  PARTY  OF  THE  THIRD  PART 

wherein  various  interests  are  highly  specialized,  for 
it  tends  to  split  up  the  people  into  unsympathetic, 
warring,  selfish  groups,  rather  than  to  draw  them 
together  by  the  cement  of  political  government — 
the  common  denominator  of  organized  social  effort. 

Nikolai  Lenin  exemplified  this  in  a  conversation 
with  Raymond  Robins,  when  he  said: 

Your  government  is  corrupt  in  that  it  is  decayed  in  thought. 
It  is  living  in  the  political  thought  of  a  bygone  political  age.  It 
is  not  living  in  the  present  economic  age.  Take  your  states  of 
New  York  and  Pennsylvania.  New  York  is  the  center  of  your 
banking  system.  Pennsylvania  is  the  center  of  your  steel  indus- 
try. Those  are  two  of  your  most  important  things — banking 
and  steel.  They  form  the  base  of  your  life.  They  make  you 
what  you  are.  Now  if  you  really  believe  in  your  banking  system, 
and  respect  it,  why  don't  you  send  Mr.  Morgan  to  your  United 
States  Senate?  And  if  you  really  believe  in  your  steel  industry 
in  its  present  organization,  why  don't  you  send  Mr.  Schwab 
to  your  United  States  Senate?  ...  It  is  inefficient.  It  is  insin- 
cere. You  refuse  to  recognize  the  fact  that  the  real  control  is 
no  longer  political.  That  is  why  I  say  that  your  system  is  lacking 
in  integrity.  That  is  why  our  system  is  superior  to  yours.  That 
is  why  it  will  destroy  yours. 

That  is  the  challenge  of  Lenin  and  Leninism  to  all 
democratic  government.  If  Lenin  alone  were  the 
challenger — if  the  motley  crew  of  Haywood,  Debs, 
Trotzky,  Zinovieff,  and  their  followers,  were  the  only 
challengers — we  might  view  the  situation  with  a 
degree  of  equanimity.  But  Lenin  is  only  a  symptom 
of  a  larger  and  more  disquieting  tendency — the  tend- 
ency toward  economic  control  of  government  that 
must  be  eliminated  if  our  democracy  is  to  live  and 
justify  the  faith  of  the  fathers. 


INVISIBLE  GOVERNMENTS  173 

Lenin  continued  in  his  conversation  with  Robins, 
showing  how  his  system  will  work: 

Who  will  be  our  representatives  in  our  national  legislature,  in 
our  national  Soviet,  from  the  district  of  Baku,  for  instance? 
The  district  of  Baku  is  an  oil  country.  Oil  makes  Baku.  Oil 
rules  Baku.  Our  representatives  from  Baku  will  be  elected  by 
the  oil  industry.  .  .  .  Similarly,  we  will  represent  the  Donetz 
coal  basin  as  coal.  The  representatives  from  the  Donetz  basin 
will  be  representatives  of  the  coal  industry. 

And  so  on,  and  so  on.  There  would  be  no  cohesive 
element  in  government — only  the  selfish  struggle  of 
selfish  groups  striving  to  gain  their  own  selfish  ends, 
each  naturally  pitted  against  the  others. 

In  the  chapter  on  the  reaction  against  radical 
leadership  I  have  quoted  Edmund  Burke  in  an  ad- 
mirable observation.  He  sets  forth  the  fundamental 
objection  to  a  congress  made  up  of  men  who  repre- 
sent the  special  interest  of  classes  instead  of  the 
interests  of  the  people  as  a  whole. 

Perhaps  the  Lenin  fallacy  could  be  stated  in  this 
way:  There  is  a  wide  and  vital  difference  between 
life  and  government — in  fact,  almost  as  wide  a  dif- 
ference as  there  is  between  man  and  beast. 

Professor  Seligman  states  the  principle  of  economic 
determinism  thus: 

The  existence  of  man  depends  upon  his  ability  to  sustain 
himself;  the  economic  life  is  therefore  the  fundamental  condi- 
tion of  all  life. 

Notice  that  the  last  word  is  "life" — not  "govern- 
ment." 


174  THE  PARTY  OF  THE  THIRD  PART 

The  beast  sustains  himself  by  his  own  efforts. 
Government  in  the  human  sense  for  the  beast  is  non- 
existent. His  only  concern  is  to  obtain  the  necessi- 
ties of  existence. 

With  man  it  is  different.  He  has  the  spiritual  out- 
look and  the  interest  in  the  aesthetic  considerations 
which  compel  him  to  adopt  a  different  attitude  from 
that  of  the  beast.  This  attitude,  expressed  in  terms 
of  patriotism,  religion,  art,  music,  literature,  recrea- 
tion, science,  philosophy,  and  a  hundred  other  activi- 
ties, has  created  a  profound  gulf  between  man  and 
beast.  They  have  turned  the  eyes  of  man  toward 
the  stars  in  the  hope  of  immortality.  They  have 
given  him  a  motive  in  government  and  social  adjust- 
ments that  infinitely  transcends  the  material,  even 
though  it  may  necessarily  and  properly  include  the 
material. 

The  tendency  of  men  to  form  associations  for 
mutual  improvement  gives  the  principle  of  economic 
determinism  a  different  interpretation  from  that  of 
merely  setting  up  a  machine  for  supplying  animal 
wants.  In  discussing  the  divergence  of  human  and 
bestial  impulses,  J.  Allen  Smith  says: 

In  the  lower  world  the  life-sustaining  activities  are  individual. 
Division  of  labor  is  either  entirely  absent  or  plays  a  part  so 
unimportant  that  we  may,  for  purposes  of  comparison,  assume 
its  absence.  The  individual  animal  has  free  access  to  surround- 
ing nature,  unrestrained  by  social  institutions  or  private  property 
in  the  environment. 

But  when  we  come  to  human  society  this  is  not  necessarily 
true.  The  material  environment  is  no  longer  the  common  pos- 


INVISIBLE  GOVERNMENTS  175 

session  of  the  group.  It  has  become  private  property  and  has 
passed  under  the  control  of  individuals  in  whose  interests  the 
laws  and  customs  of  every  community,  ancient  and  modern, 
have  been  largely  molded.  Wherever  the  few  acquire  a  mo- 
nopoly of  political  power,  it  always  tends  to  develop  into  a 
monopoly  of  the  means  and  agents  of  production. 

Now  who  shall  have  this  political  power — the  few 
or  the  many?  And  how  shall  they  achieve  and  hold 
this  power? 

Although  individual  control  of  property  has  come, 
the  purely  anarchistic  and  bestial  struggle  for  exist- 
ence gives  way  to  the  human  impulses  of  co-opera- 
tion and  the  establishment  of  laws  and  customs. 
This  is  the  way  humanity  has  of  preserving  itself. 
This  is  the  recompense  of  civilization.  Man  forfeits 
his  anarchistic  freedom,  and  in  return  he  receives 
the  benefits  of  co-operation.  Co-operation  between 
labor  and  capital  is  necessary  to  society.  The  in- 
dustrial conflict  as  it  now  exists  is  a  cave-man  weapon. 
A  better  means  of  adjustment  is  imperatively  re- 
quired. 

The  very  fact  that  anarchy  is  abandoned  in  the 
association  of  men  is  an  argument  against  allowing 
economic  determinism  to  become  a  preponderant 
factor  in  government,  for  economic  determinism  in 
its  essence  is  merely  a  statement  of  raw  selfishness, 
and  as  we  recede  from  anarchy  we  increase  co- 
operation— spiritual  and  not  enforced.  We  also  tend 
to  increase  organization.  Individual  selfishness — 
anarchistic  selfishness — is  bad  enough,  but  highly 
organized  or  civilized  selfishness  is  a  hundredfold 


176  THE  PARTY  OF  THE  THIRD  PART 

worse.  It  holds  the  possibilities  of  a  cataclysm  to  a 
nation. 

Making  economic  determinism  or  economic  pres- 
sure a  dominant  principle  in  government  means 
giving  the  power  of  life  and  death  over  society  to 
those  who  happen  to  have  the  instruments  of  pro- 
duction in  their  organized  power.  The  sophistry  of 
the  formula  may  be  demonstrated  by  the  simple  test 
of  trying  to  state  just  who  are  workers  and  who  are 
not. 

Individualism  and  organization  have  different 
shades  of  meaning.  Each  has  its  disadvantages  when 
carried  to  the  extreme  or  used  for  illegitimate  pur- 
poses. The  great  task  of  civilization  and  real 
brotherhood  is  to  maintain  the  proper  balance  be- 
tween the  two  and  let  one  be  the  check  upon  the 
other.  The  Industrial  Court  is  designed  to  preserve 
the  check  and  balance. 

A  great  many  who  talk  about  "freedom'*  are  em- 
ploying a  fallacy  in  this  respect:  The  power  of  or- 
ganization must  not  be  used  as  an  individual  pre- 
rogative if  justice  is  to  be  served.  Liberty  is  only  a 
relative  term.  A  man  exercising  his  "right  to  strike  " 
is  not  exercising  an  individual  right  or  liberty,  but  a 
collective  weapon.  Such  a  weapon  would  be  power- 
less without  the  force  of  organization.  Co-operation 
is  a  sacred  principle  which  should  not  be  prostituted 
to  selfish  ends.  This  holds  good  with  labor  and  capi- 
tal alike. 

Democracy   under   civilization   is    a   progressive 


INVISIBLE  GOVERNMENTS          177 

thing.  It  must  adapt  itself  to  changing  circum- 
stances. In  changing,  however,  it  should  cling  to 
fundamentals.  There  is  great  danger  that  it  may 
drift  into  autocratic  government  unknowingly.  To 
illustrate  the  need  for  vigilance  we  quote  again  from 
J.Allen  Smith: 

Individualism  as  an  economic  doctrine  was  advocated  in  the 
eighteenth  century  by  those  who  believed  in  a  large  measure  of 
freedom  for  the  industrial  classes.  The  small  business  which 
was  then  the  rule  meant  the  wide  diffusion  of  economic  power. 
A  laissez-faire  policy  would  have  furthered  the  interests  of  that 
large  body  of  small,  independent  producers  who  had  but  little 
representation  in,  and  but  little  influence  upon,  the  government. 
It  would  have  contributed  materially  to  the  progress  of  the 
democratic  movement  by  enlarging  the  sphere  of  industrial  free- 
dom for  all  independent  producers.  It  does  not  follow,  however, 
that  this  doctrine,  which  served  a  useful  purpose  in  connection 
with  the  eighteenth  century  movement  to  limit  the  power  of  the 
ruling  class,  is  sound,  in  view  of  the  political  and  economic  con- 
ditions which  exist  to-day.  The  so-called  industrial  revolution 
has  accomplished  sweeping  and  far-reaching  changes  in  economic 
organization.  It  has  resulted  in  a  transfer  of  industrial  power 
from  the  many  to  the  few,  who  now  exercise  in  all  matters  re- 
lating to  production  an  authority  as  absolute  and  irresistible  as 
that  which  the  ruling  class  exercised  in  the  middle  of  the  eigh- 
teenth century  over  the  state  itself.  The  simple  decentralized 
and  more  democratic  system  of  production  which  formerly  pre- 
vailed has  thus  been  supplanted  by  a  highly  centralized  and  thus 
oligarchic  form  of  industrial  organization.  At  the  same  time, 
political  developments  have  been  strongly  in  the  direction  of 
democracy. 

As  a  result  of  these  political  and  economic  changes  the  policy 
of  government  regulation  of  industry  is  likely  to  be  regarded  by 
the  masses  with  increasing  favor.  A  society  organized  as  a 
political  democracy  cannot  be  expected  to  tolerate  an  industrial 
aristocracy. 
12 


1 78  THE  PARTY  OF  THE  THIRD  PART 

This  statement  seems  to  be  directed  against  capi- 
tal, but  by  analyzing  the  essentials  of  economic  con- 
trol it  may  be  seen  that  the  statement  applies  with 
equal  force  to  radical  labor  leadership.  Economic 
autocracy  is  just  as  bad  under  one  banner  as  another. 

The  syndicalist  says  that  government  should  be  a 
function  of  supplying  food,  clothing,  shelter,  and  the 
other  creature  comforts  to  society. 

He  says  that  the  principle  of  majority  rule  through 
the  ballot  box  is  "miseducation."  He  admittedly 
and  frankly  advocates  government  by  economic  pres- 
sure, though  the  pressure  comes  from  a  minority. 
He  says  that  the  ability  to  produce  and  control  the 
necessities  of  life  is  the  sole  test  of  the  right  to  govern 
— reserving,  of  course,  his  own  definition  of  the 
producer. 

He  ridicules  the  political  form  of  government,  and 
asserts  that  our  American  talk  of  spiritual  and  moral 
ideals  and  patriotism  is  "bunk."  He  says  those 
things  have  nothing  to  do  with  scientific  government. 

Reduced  to  its  fundamentals,  therefore,  the  ques- 
tion is  whether  we  shall  preserve  the  idealistic  Ameri- 
can form  of  government  with  its  numerical  majority 
rule  and  its  respect  for  universal  public  welfare,  or 
bow  down  to  materialistic  economic  forces  of  capital 
or  labor. 

In  his  book,  The  New  Freedom^  Woodrow  Wilson 
says: 

We  stand  in  the  presence  of  a  revolution  . . .  whereby  America 
urill  insist  upon  recovering  in  practice  those  ideals  which  she  has 


INVISIBLE  GOVERNMENTS          179 

always  professed,  upon  securing  a  government  devoted  to  the 
general  interest  and  not  to  special  interests. 

The  laws  of  this  country  have  not  kept  up  with  the  change 
of  economic  circumstances  in  this  country.  .  .  .  Our  laws  are  still 
meant  for  business  done  by  individuals;  they  have  not  been 
satisfactorily  adjusted  to  business  done  by  great  combinations, 
and  we  have  got  to  adjust  them.  . . .  The  government,  which  was 
designed  for  the  people,  has  got  into  the  hands  of  bosses  and  their 
employers — the  special  interests.  An  invisible  empire  has  been 
set  up  above  the  forms  of  democracy.  .  .  .  The  government  of 
our  country  cannot  be  lodged  in  any  special  classes.  No  group 
of  men  less  than  a  majority  has  a  right  to  tell  me  how  I  have 
got  to  live  in  America. 

It  is  clear  from  the  context  that  when  Mr. 
Wilson  wrote  this  he  had  the  special  interests  of 
capital  in  mind,  but  such  a  thesis  as  that  would 
lack  integrity  and  conviction  if  it  did  not  apply 
equally  to  any  other  group  that  might  obtain 
economic  power. 

Such  sayings,  when  applied  to  the  program  of 
Jouhaux,  Woodruff,  Lenin,  and  other  syndicalistic 
radicals,  show  that  their  program  is  reactionary  and 
destructive  of  true  democracy. 

There  has  been  too  much  loose  talk  of  "revolu- 
tion." It  does  not  have  a  pleasant  sound  here,  in 
America,  where  ample  machinery  has  been  provided 
for  the  adjustment  of  every  known  and  conceivable 
social  ill,  leaving  no  necessity  for  resorting  to  any- 
thing but  orderly  and  evolutionary  processes.  We 
have  the  right  to  vote.  If  the  people  do  not  get  what 
the  majority  of  them  want  it  is  their  own  fault — they 
have  been  derelict  in  their  citizenship.  They  have 


1 8o  THE  PARTY  OF  THE  THIRD  PART 

the  power  to  bring  about  any  change  the  majority 
desires  without  resort  to  "revolution." 

What  is  the  "industrial  revolution"  we  hear  about  ? 

There  is  no  occasion  for  anything  but  industrial 
evolution.  There  is  need  for  that. 

Industrial  evolution  means  the  administration  of  a 
larger  measure  of  industrial  justice  by  means  of  con- 
stitutional methods,  at  the  hands  of  the  lawmaking 
power,  which  is  the  instrument  of  the  majority. 

In  his  admirable  work  on  Democracy  in  America, 
the  great  Frenchman  De  Tocqueville  wrote,  more 
than  sixty  years  ago: 

It  would  seem  that  if  despotism  were  to  be  established  amongst 
the  democratic  nations  of  our  days,  it  might  assume  a  different 
character;  it  would  be  more  extensive  and  more  mild;  it  would 
degrade  men  without  tormenting  them. 

He  also  says  of  the  manufacturing  aristocracy: 

The  friends  of  democracy  should  keep  their  eyes  anxiously 
fixed  in  this  direction,  for  if  ever  a  permanent  inequality  of  con- 
ditions and  aristocracy  again  penetrate  into  the  world,  it  may  be 
predicted  that  this  is  the  channel  by  which  they  will  enter. 

This  prophetic  statement  assumes  that  despotism 
may  creep  into  American  life  in  a  very  real  sense 
without  outward  conquest,  in  some  such  manner  as 
that  pictured  by  Jouhaux,  or  other  "borers  from 
within  " — whether  from  one  extreme  of  industrialism 
or  the  other.  This  "industrial  revolution"  is  a  vague 
and  elusive  thing,  but  there  is  always  more  than  a 
chance  that  it  may  become  successful  in  some  in- 
direct way  and  in  a  way  that  will  be  disastrous  un- 


INVISIBLE  GOVERNMENTS          181 

less  wise  and  constructive  methods  are  used  to  estab- 
lish industrial  justice. 

It  is  difficult  to  get  the  American  people  excited  over 
the  possibility  of  Lenin  or  Haywood  having  his  own 
way,  but  it  is  not  so  difficult  to  show  them  that  some 
of  the  facts  of  direct  action  are  already  here  at  work. 

It  is  not  difficult  to  show  them  that  laws  have 
been  enacted  here  in  free  America  under  economic 
pressure.  It  is  not  difficult  to  show  them  that  their 
supplies  of  food  and  fuel  are  cut  off  or  cornered  by 
selfish  interests,  and  thereby  their  American  privi- 
leges and  rights  are  being  grievously  infringed  upon. 
It  is  not  difficult  to  show  them  that  the  government 
established  for  the  purpose  of  guaranteeing  their 
lives,  liberty,  and  pursuit  of  happiness  is  not  always 
able  to  fulfill  its  guaranty  because  of  the  fact  that  an 
invisible  government  consisting  of  a  small  and  des- 
potic minority  has  laid  a  hand  upon  the  means  of 
production  and  transportation. 

Now  and  then  we  see  intimations  of  "the  new 
society  within  the  shell  of  the  old." 

De  Tocqueville  says: 

The  very  essence  of  democratic  government  consists  in  the 
absolute  sovereignty  of  the  majority. 

This  is  such  an  obvious  truth  that  we  seem  to  have 
become  benumbed  by  its  repeated  impacts,  and  some- 
times we  lose  the  power  to  react  when  a  minority 
rule  comes  up  in  a  new  guise.  We  now  have  the 
economic  minority  to  reckon  with. 

"The  immediate  aim  of  democracy  is  political," 


1 82  THE  PARTY  OF  THE  THIRD  PART 

says  J.  Allen  Smith.  "It  seeks  to  overthrow  every 
form  of  class  rule  and  bring  about  such  changes  in 
existing  government  as  will  make  the  will  of  the 
people  supreme." 

He  recognizes  the  fact  that  the  commonplaces  of 
to-day  may  become  the  perils  of  to-morrow.  An 
activity  of  little  or  no  consequence  in  1835  might 
threaten  the  very  foundations  of  republican  govern- 
ment to-day. 

Among  the  many  prophetic  warnings  against  pres- 
ent industrial  crises  is  that  of  George  Washington, 
who  said  in  his  Farewell  Address: 

All  obstructions  to  the  execution  of  the  laws,  all  combinations 
and  associations  under  whatever  plausible  character,  with  the 
real  design  to  direct,  control,  counteract,  or  awe  the  regular 
deliberation  and  action  of  the  constituted  authorities,  are  de- 
structive of  this  fundamental  principle  [of  constitutional  govern- 
ment] and  of  fatal  tendency.  They  serve  to  organize  faction,  to 
give  it  an  artificial  and  extraordinary  force — to  put  in  the  place 
of  the  delegated  will  of  the  nation  the  will  of  a  party — often  a 
small  but  artful  and  enterprising  minority  of  the  community — 
and  according  to  the  alternate  triumphs  of  different  parties  to 
make  the  public  administration  the  mirror  of  the  ill-concerted 
and  incongruous  projects  of  faction,  rather  than  the  organ  of 
consistent  and  wholesome  plans  digested  by  common  councils 
and  modified  by  mutual  interests.  However  combinations  or 
associations  of  the  above  description  may  now  and  then  answer 
popular  ends,  they  are  likely,  in  the  course  of  time  and  things, 
to  become  potent  engines  by  which  cunning,  ambitious,  and  un- 
principled men  will  be  enabled  to  subvert  the  power  of  the 
people,  and  to  usurp  for  themselves  the  reins  of  government, 
destroying  afterward  the  very  engines  which  have  lifted  them  to 
unjust  dominion. 

So  many  who  desire  to  overthrow  the  Constitu- 


INVISIBLE  GOVERNMENTS  183 

tion  appeal  to  that  same  Constitution  to  protect 
them  from  the  righteous  anger  of  good  citizens  and 
prosecution  by  state  authorities. 

Economic  government  has  no  place  in  American 
destiny.  Whatever  he  may  concede  as  to  the  validity 
of  the  theory  of  economic  determinism  as  an  existing 
fact,  every  lover  of  America  must  repudiate  it  as  a 
controlling  principle  in  government.  It  implies  the 
rule  of  a  bold  and  brazen  minority.  The  fact  that 
the  minority  may  be  of  a  group  arbitrarily  designated 
as  the  "proletariat,"  does  not  alter  the  fact  that  it 
is  a  minority.  As  a  matter  of  fact,  no  one  was  ever 
able  to  draw  the  line  between  workers  and  nonwork- 
ers,  except  in  a  most  crude  and  unscientific  way. 
The  brain  factor  has  become  too  important  in  mod- 
ern industry.  Five  minutes'  thought  by  one  man 
may  equal  the  thoughtless  labor  of  a  thousand  men 
for  a  thousand  days.  Who  can  weigh  the  compara- 
tive value  of  work  to  society? 

Human  rights  outweigh  every  conceivable  eco- 
nomic right  or  claim.  With  all  due  regard  to  pro- 
duction, it  cannot  be  the  measure  of  citizenship  or 
social  value.  Control  of  production  may  take  the 
place  of  production  itself — in  a  thousand  different 
ways — by  money,  by  leadership  personality,  by  in- 
vention, by  geographical  position,  or  other  fortuitous 
tactical  advantage.  Who  can  measure  the  produc- 
tive value  of  Abraham  Lincoln,  Jenny  Lind,  Edison, 
Betsy  Ross,  Patrick  Henry,  Samuel  Gompers,  Doc- 
tor Mayo,  Julia  Ward  Howe,  Clara  Barton?  Who 


1 84  THE  PARTY  OF  THE  THIRD  PART 

is  there  so  wise  that  he  can  establish  a  scheme  where- 
by each  member  of  society  is  rewarded  according  to 
his  material  contribution  to  society,  even  if  we  except 
the  spiritual?  Or,  on  the  other  hand,  who  will  say 
that  the  indolent  or  shiftless  man  deserves  equal  con- 
sideration with  the  strenuous  toiler? 

American  citizenship  was  built  up  in  the  sturdy 
individual  struggle  with  frontier  conditions,  and  the 
conquering  of  unfavorable  obstacles.  It  was  built 
up  under  the  idealistic  guidance  of  such  men  as 
Washington,  Jefferson,  Franklin,  Marshall,  Lincoln, 
Roosevelt,  and  other  stanch  believers  in  organized 
civil  government  and  majority  rule.  It  cannot  de- 
part from  the  guidance  of  such  men  in  the  funda- 
mentals without  sacrificing  its  very  identity  and  life. 

"A  society  organized  as  a  political  democracy 
cannot  tolerate  an  industrial  aristocracy."  The 
thoughtful  citizen,  studying  the  signs  of  the  present 
time,  cannot  fail  to  see  increasing  evidences  of  in- 
dustrial aristocracies  and  economic  autocracies  merg- 
ing together  so  as  to  form  a  common  enemy  to  our 
historical  form  of  democracy.  Our  governmental 
organism  must  contain  some  strong  agency  to  pre- 
serve itself  against  the  invisible  empire  of  artful 
minorities  equipped  with  the  leverage  of  organized 
economic  power.  That  strong  agency  is  most  natu- 
rally expressed  in  terms  of  industrial  courts  of  some 
kind.  As  long  as  men  are  imperfect  and  selfish  we 
must  have  such  an  agency  as  the  final  line  of  defense 
for  the  political  democracy. 


XII 

WHY   RADICALS    OPPOSE 

THERE  is  no  mystery  about  the  violent  oppo- 
sition of  radical  labor  leaders  to  the  Indus- 
trial Court.    The  typical  radical  attitude  is 
stated  in  the  preamble  of  the  I.  W.  W.  constitution, 
an  excerpt  of  which  is: 

The  working  class  and  the  employing  class  have  nothing  in 
common.  .  .  .  Between  these  two  classes  a  struggle  must  go  on 
until  the  workers  of  the  world  organize  as  a  class,  take  possession 
of  the  earth  and  the  machinery  of  production,  and  abolish  the 
wage  system.  ...  It  is  the  historic  mission  of  the  working  class 
to  do  away  with  capitalism. 

The  Industrial  Court,  as  a  matter  of  course,  pre- 
supposes the  American  principle  of  property  rights, 
while  interposing  itself  in  behalf  of  human  rights. 
The  radical  would  solve  the  question  by  doing  away 
with  property  rights  altogether. 

As  labor  leadership  approximates  radicalism,  it 
distrusts  and  opposes  the  Industrial  Court,  for  the 
court  takes  away  from  the  agitator  and  the  exploit- 
ing union  boss  the  power  that  has  been  his. 

Not  all  the  opposition  to  the  court  can  be  classed 
as  I.  W.  W.  or  Bolshevist,  but  in  general  it  can  be 


i86  THE  PARTY  OF  THE  THIRD  PART 

said  that  the  labor  extremist  is  traditionally  at 
swords'  points  with  the  employer,  and  he  conceives 
it  to  be  his  historic  duty  to  keep  himself  and  his 
followers  in  a  perpetual  state  of  antagonism,  as 
though  nothing  could  be  obtained  in  the  way  of 
justice  except  by  the  use  of  strikes  and  other  methods 
of  coercion. 

W.  Z.  Foster,  in  his  book  on  the  steel  strike,  takes 
this  position,  virtually  espousing  the  I.  W.  W.  theory 
that  there  can  be  no  peace  between  capital  and  labor 
as  long  as  the  wage  system  exists.  He  not  only  claims 
this  philosophy  for  himself,  but  attributes  it  to  all 
trade  -  unions.  He  exaggerates  the  situation,  of 
course,  but  his  statement  holds  a  warning  to  those 
who  think  that  sounding  phrases  about  collective 
bargaining  and  the  "right  to  strike"  will  bring  about 
any  measure  of  industrial  peace. 

The  radical  leader,  whether  he  calls  himself  a 
syndicalist  or  a  Republican  or  a  Democrat,  has  a 
traditional  attitude  of  belligerency  toward  employ- 
ing capital  which  he  thinks  he  must  keep  at  high 
tide.  He  instinctively  realizes  that  as  soon  as  he  is 
deprived  of  the  attitude  of  protectorship  over  labor 
his  days  are  numbered.  He  must  be  the  instrument 
through  which  concessions  are  secured  and  protests 
voiced.  Any  court  or  body  that  makes  him  unneces- 
sary is  to  be  opposed  as  though  it  were  a  menace  to 
labor,  of  course. 

Mr.  Gompers,  pleading  for  his  "stub  of  a  sword," 
and  eloquently  portraying  the  pose  of  a  labor  leader 


WHY  RADICALS  OPPOSE  187 

in  the  closing  of  his  address  in  Carnegie  Hall,  May 
28,  1920,  gave  a  fine  exemplification  of  the  old  con- 
ception of  labor-leader  policy.  He  appeared  as  a 
knight  of  the  old  order — the  old  order  in  which  force 
rules  and  the  gathered  clans,  bound  by  union  ties, 
appoint  a  champion  to  do  battle  for  them,  unable  or 
unwilling  to  realize  that  a  just  and  benevolent  gov- 
ernment may  provide  a  substitute  for  the  stub  of  a 
sword. 

He  breathed  defiance.  He  had  no  suggestion  for 
the  safeguarding  of  the  public.  As  a  successor  for 
war  he  advocated  more  war. 

The  only  hope,  and  the  logical  purpose  of  the  radi- 
cal, lies  in  the  direction  of  convincing  labor  that  its 
salvation  lies  in  the  abolition  of  employing  capital. 
When  radicals  find  the  door  closed  to  this  exotic  and 
un-American  doctrine,  they  will  cease  their  activities, 
but  not  before.  "Industrial  peace?  Certainly  not! 
Why  do  we  want  peace?  We  want  war  until  capital 
is  abolished."  That  is  the  attitude  of  the  radicals. 
They  thrive  on  discontent  and  disturbance.  Any 
law  that  alleviates  industrial  conflict  is  distasteful 
to  them.  The  radical  Socialists  hated  Theodore 
Roosevelt  above  all  the  rest  because  Roosevelt  was 
continually  undermining  their  imposing  edifice  of 
discontent  by  advocating  measures  of  industrial 
peace  and  justice. 

State  supervision  through  courts  and  adequate 
commissions  is  the  republican  preventive  for  Social- 
istic state  ownership.  The  Socialists  would  have  the 


i88  THE  PARTY  OF  THE  THIRD  PART 

state  operate  and  own  a  vital  industry.  The  repub- 
lican would  forestall  this  by  giving  the  state  enough 
supervision  to  restrain  private  greed. 

The  government  acts  better  as  a  judge  and  con- 
ciliator than  as  a  business  administrator,  except  in 
emergencies.  Under  a  temporary  stress  a  govern- 
ment may  do  unusually  well.  Government  owner- 
ship eventually  tends  to  throw  the  operation  of  vital 
industries  into  the  hands  of  politicians.  Courts 
are  the  most  impervious  to  politics  of  any  of  our 
public  institutions.  Private  initiative,  held  in  due 
check  by  the  courts  when  moral  conscience  fails, 
is  the  most  wholesome  expression  of  American  in- 
dustrial life.  If  the  Industrial  Court  makes  good, 
Socialism  will  have  sustained  its  most  staggering 
defeat. 

It  has  been  well  said  that  co-ordination  is  the  key 
to  the  successful  operation  of  any  large  enterprise. 

The  warden  of  a  Western  penitentiary  once  said 
that  he  used  degenerates  to  tear  down  old  stone 
buildings,  but  normal-minded  prisoners  to  perform 
work  of  construction.  One  degenerate,  he  said,  could 
tear  down  faster  than  three  normal  men,  but  was 
unable  to  lay  five  stones  in  a  straight  row. 

The  test  of  normality  and  human  efficiency  is  the 
ability  to  co-ordinate. 

Labor  and  capital  are  not  properly  co-ordinating — 
anybody  will  concede  that.  It  should  be  the  aim  of 
statesmen  to  cause  labor  and  capital  to  co-ordinate. 

The  radical  leader  does  not  want  co-ordination. 


WHY  RADICALS  OPPOSE  189 

He  wants  destruction  of  one  of  the  two  discordant 
elements.  He  desires  to  keep  up  the  feeling  of  an- 
tagonism. He  wants  to  keep  up  the  so-called  right 
to  strike.  He  wants  to  keep  up  a  condition  which 
continually  holds  the  strike  as  a  menace  in  the  back- 
ground. He  wants  to  keep  alive  the  feeling  of  ab- 
normality and  suspicion.  Most  of  all,  he  wants  to 
keep  his  job. 

The  Industrial  Court  comes  forward  with  a  plea 
for  normality  and  co-ordination.  It  offers  a  workable 
substitute  for  strikes.  It  seeks  to  do  away  with  the 
radical  sword  and  the  stub  of  a  sword. 

Mr.  Gompers  and  many  of  his  coworkers  are  op- 
posed to  many  of  the  profit-sharing  plans  and  indus- 
trial democracy  systems  in  operation  in  some  great 
establishments,  even  though  such  systems  have 
proven  to  be  blessings  to  the  rank  and  file  of  laboring 
men. 

It  is  not  difficult  to  understand  their  opposition. 
If  the  laboring  man  can  get  justice  and  fair  play  by 
some  other  means  than  by  the  resort  to  strikes  and 
the  show  of  force,  it  means  that  the  radical  leaders 
are  out  of  a  job.  It  does  not  mean  that  unions  can 
be  less  strong  or  effective,  however.  Organization 
can  be  for  other  valuable  and  necessary  purposes 
besides  war. 

An  instance  of  reaction  against  radicalism  is  found 
in  the  open-shop  movement,  which  has  gained  great 
impetus  recently.  The  open-shop  movement  is  the 
answer  to  extreme  labor  leadership.  Such  unfor- 


190  THE  PARTY  OF  THE  THIRD  PART 

tunate  clashes  of  opinion  and  policy  could  be  avoided 
by  resort  to  a  tribunal  of  justice  and  fair  play. 

One  of  the  things  which  legislation  should  guard 
against,  and  which  the  Kansas  legislature,  in  estab- 
lishing the  Industrial  Court,  kept  sedulously  in  mind, 
is  the  dangerous  possibility  of  allowing  the  present 
reaction  of  public  sentiment  against  radical  labor 
leadership  to  interfere  with  a  program  of  impartial 
justice. 

Despite  the  fact  that  radical  leadership  now  seems 
to  be  securely  in  the  saddle,  all  who  are  acquainted 
with  the  situation  realize  that  the  conservative  in 
labor  ranks  will  eventually  mark  the  direction. 

The  average  worker,  when  he  has  an  opportunity 
to  follow  wise  leadership,  is  not  a  Bolshevist.  He 
wants  to  be  proud  of  his  work.  He  desires  a  larger 
share  of  the  satisfaction  which  should  come  with 
doing  well  his  daily  job.  He  wants  that  more  than 
he  wants  a  larger  share  of  the  management  and  con- 
trol of  the  enterprise  which  furnishes  the  job.  His 
normal  ambition  is  to  stand  upon  the  foundation  of 
his  own  merit,  to  be  a  good  workman,  to  be  worthy 
of  his  earnings,  and  to  have  those  earnings  sufficient 
to  bring  contentment  to  himself  and  his  family. 

The  radical  has  disturbed  his  visions  somewhat. 
He  has  distracted  his  attention  and  filled  him  with 
the  noise  of  sham  battle;  but  normally,  the  American 
workman  wants  his  job  to  be  the  pathway  to  his  idea 
of  success. 

The  hope  of  the  Kansas  law  is  in  the  fact  that  it 


WHY  RADICALS  OPPOSE  191 

is  gaining  ground  with  this  normal  workman  who, 
for  reason  that  we  have  no  better  classification,  is 
called  a  conservative.  He  is  already  conscious  of  the 
fact  that  too  much  unionization  may  become  as 
ineffective  as  too  little.  No  organization  is  so  power- 
ful that  it  can  with  impunity  use  power  immoder- 
ately. Employing  capital  was  brought  to  the  reali- 
zation of  this  lesson,  and  there  are  in  the  ranks  of 
labor  enough  thoughtful  men  to  realize  that  the  im- 
moderate program  of  the  radical  labor  leadership  is 
going  to  result  just  as  disastrously  as  the  immoderate 
program  of  capital  has  resulted. 

The  sentiment  which  to-day  is  culminating  in  a 
definite  reaction  against  organized  labor  had  its 
first  recognizable  manifestation  following  the  passage 
of  the  Adamson  law.  This  incident  dramatized  the 
power  of  a  solid  minority  in  control  of  a  public  neces- 
sity to  supersede  government.  When  the  represen- 
tatives of  the  four  American  brotherhoods,  mad  with 
temporary  power,  held  their  stop  watches  while  Con- 
gress and  the  President  adopted  the  Adamson  law 
through  coercion,  the  seed  was  sown  in  the  public 
mind  for  a  revolt. 

At  the  moment,  interest  in  the  matter  seemed  to 
disappear  in  the  emergencies  of  the  war  almost  im- 
mediately after  the  campaign  in  which  President 
Wilson  was  re-elected.  But  now  men  hark  back  to 
it  as  the  beginning  in  America  of  the  radical  leader- 
ship's use  of  class  power. 

Men  are  reading  again  the  words  of  President  Wil- 


i92  THE  PARTY  OF  THE  THIRD  PART 

son,  uttered  in  somewhat  feeble  protest  against  his 
own  action  in  surrendering  to  labor's  demand.  Said 
he,  in  extenuation: 

Matters  have  come  to  a  sudden  crisis  in  this  particular  dispute 
and  the  country  has  been  caught  unprovided  with  any  practical 
means  of  enforcing  the  principle  of  arbitration,  by  whose  fault 
we  will  not  stop  to  inquire.  A  situation  had  to  be  met  whose 
elements  and  fixed  conditions  were  indisputable.  The  practical 
and  patriotic  course  to  pursue,  it  seemed  to  me,  was  to  secure 
immediate  peace  by  acceding  the  one  thing  in  the  demands  of 
the  men  which  would  bring  peace. 

After  pointing  out  the  emergencies  of  the  situation 
along  the  Mexican  border,  where  almost  our  entire 
military  force  was  then  stationed  to  guard  against 
hostile  raids,  and  the  need  that  this  force  be  supplied 
steadily  with  the  transportation  facilities  then 
threatened  by  the  perils  of  the  strike,  the  President 
referred  likewise  to  the  unprotected  position  of  the 
general  public  and  then  suggested  the  remedy  which 
is  exactly  in  line  with  what  we  have  accomplished  in 
Kansas.  He  said: 

There  is  one  thirg  we  should  do  if  we  are  true  champions  of 
arbitration.  We  should  make  all  awards  and  judgments  by 
record  of  a  oo-Krt  of  law,  in  order  that  their  interpretation  and 
enforcement  m'ght  lay,  not  with  one  of  the  parties  in  arbitration, 
but  with  an  impartial  and  authoritative  tribunal.  These  things 
I  urge  upon  you,  not  in  haste  or  merely  as  a  means  of  meeting 
the  present  emergency,  but  as  permanent  and  necessary  addi- 
tions to  the  laws  of  the  land  suggested  by  circumstances  we 
hope  never  to  see,  but  imperative  as  well  as  just  if  such  emer- 
gencies are  to  be  met  in  the  future.  I  feel  that  no  extended 
argument  is  needed  to  commit  them  to  your  favorable  judgment. 


WHY  RADICALS  OPPOSE  193 

The  President,  as  he  looked  back  over  a  course  of 
action  which  had  made  the  nation  subservient  to  the 
class,  suggested  the  only  remedy  possible  if  we  are, 
as  he  intimates,  to  meet  this  emergency  in  the  future. 

Laws  are  not  made  merely  by  writing  words  in  a 
statute  book.  There  must  be  behind  them  intelligent 
public  sentiment  capable  of  coherent  action.  This 
sentiment  must  be  born  of  a  calm  and  dispassionate 
analysis.  Out  of  the  display  of  radicalism  that 
America  has  seen  in  the  recent  past,  and  out  of  the 
reaction  against  that  radicalism,  there  must  be 
brought  a  sane  realization  of  our  duty  in  the  line  of 
legislation.  The  I.  W.  W.  philosophy  should  be 
studied  so  that  we  may  know  its  fallacies,  and  we 
must  understand  whence  come  the  currents  of  un- 
rest and  disturbance  that  have  disturbed  our  national 
life.  Blind  reaction  will  only  insure  the  triumph  cf 
radicalism.  The  next  decade  will  be  a  retesting  of 
our  American  government. 
13 


xin 

STRIKES   AND   LOCKOUTS 

f  •  \HE  strike,  according  to  Webster,  is  "the  act 
of  quitting  work;  specifically,  an  act  of  a 

-^  body  of  workmen,  done  as  a  means  of  enforc- 
ing compliance  with  demands." 

The  beginning  of  the  strike  was  such  a  perfectly 
proper  and  natural  thing  that  a  great  many  people 
are  unable  to  see  that  the  strike  can  have  any  inher- 
ent element  of  wrong. 

The  strike  arose  from  the  simple  proposition  of 
refusing  to  sell  one's  service  at  less  than  a  certain 
price. 

When  a  man  quits  work  and  announces  he  cannot 
or  will  not  work  at  the  old  wage,  and  must  have  a 
higher  one,  he  is  acting  within  his  normal  rights  just 
the  same  as  a  man  is  acting  within  his  normal  rights 
when  he  refuses  to  sell  or  lease  his  house  under  a 
certain  figure.  As  a  simple,  rudimentary  proposi- 
tion, then,  the  individual  worker's  position  is  im- 
pregnable. It  is  the  undisputed  right  of  the  individ- 
ual to  quit  work  at  any  time  he  chooses,  and  insist 
upon  higher  wages  before  going  back. 

If  there  were  nothing  else  to  the  strike  problem 


STRIKES  AND  LOCKOUTS  195 

than  that,  there  would  be  no  strike  problem  at  all 
and  people  might  well  ignore  the  whole  subject. 
Unfortunately,  the  whole  subject  takes  on  a  much 
different  color  in  the  light  of  altered  circumstances. 

When  a  man  organizes  a  syndicate  and  buys  or 
controls  by  means  of  options  the  sale  or  rental*  of 
all  the  houses  of  a  certain  popular  class  in  a  city,  and 
raises  the  sale  or  rental  price  to  certain  figures,  we 
might  concede  that  he  was  acting  within  his  rights. 
But  we  would  begin  to  get  restive.  We  would  feel 
that  he  was  rather  taking  advantage  of  the  situation, 
especially  if  there  were  a  housing  shortage.  Houses 
are  used  for  comparison  because  they  are  impressed 
with  a  certain  vital  and  almost  sacred  significance. 

And  then  suppose  that  this  man  should  form  a 
syndicate  that  controlled  all  the  houses  m  the 
city,  acquiring  a  power  to  control  the  terms  of 
shelter — what  then?  We  would  consider  that  an 
outrage  and  would  implore  the  lawmakers  to  "do 
something." 

And  then  suppose  again  that  this  man,  or  a  group 
of  men,  should  form  a  syndicate  of  syndicates  and 
control  not  only  the  houses  of  the  state  but  the  sup- 
ply of  coal  and  food  and  clothing,  and  would  double, 
triple,  and  quadruple  the  prices — what  then?  We 
would  feel  that  the  very  lives  of  the  people  were  being 
threatened,  and  we  would  demand  in  no  uncertain 
tones  that  the  government  interfere,  else  the  very 
government  itself  would  be  superseded  by  a  private 
organization  of  capitalists. 


196  THE  PARTY  OF  THE  THIRD  PART 

The  man  or  group  might  say,  "Well,  the  property 
is  ours;  we  can  do  as  we  please  with  it." 

That  may  be  true  in  the  individual  case,  but  it 
certainly  is  not  true  in  the  collective  case.  There  is 
as  much  difference  as  there  is  between  night  and 
day.  The  right  of  the  people  is  superior  to  the 
right  of  organization.  The  necessities  of  life  are 
impressed  with  a  public  interest.  Socialists  would 
put  a  stop  to  all  this  by  having  the  government 
take  over  and  own  the  utilities.  But  there  is  a 
better  way. 

The  government  has  passed  laws  regulating  com- 
binations. It  has  exercised  its  proper  police  powers 
in  restricting  property  rights  so  that  they  do  not 
become  property  despotisms.  The  courts  are  given 
the  power  to  prevent  men  from  using  their  capital  in 
such  ways  as  to  operate  against  puWic  welfare. 

The  individual  who  quits  work  is  exercising  a 
perfect  right  as  long  as  he  confines  himself  to  quitting 
work.  But  if  he  goes  farther  and  agrees  with  others 
to  quit  work,  his  act  takes  on  a  more  and  more  com- 
plex and  serious  aspect,  depending  upon  the  scope 
of  his  organization  and  its  purposes.  If  his  organized 
agreement  goes  so  far  as  to  control  and  restrict  the 
product  of  one  of  the  great  utilities,  the  lives  of  the 
people  may  be  threatened.  If  his  organized  agree- 
ment goes  so  far  as  to  control  and  restrict  the  product 
of  all  the  great  utilities,  government  itself  is  threat- 
ened with  coercion  or  extinction,  for  if  a  government 
is  unable  to  guarantee  the  lives  and  health  and 


STRIKES  AND  LOCKOUTS  197 

security  of  its  people  against  organized  force,  it  isv  to 
all  intents  and  purposes,  a  failure.  That  much  is 
self-evident. 

The  right  to  quit  work  is  entirely  different  from 
the  right  to  strike,  as  any  fair-minded  person  must 
concede.  Even  if  the  Kansas  law  were  primarily  an 
antistrike  law,  which  is  not  the  case,  it  would  still  be 
extremely  untruthful  to  say  that  the  law  would  de- 
prive a  man  of  the  right  to  quit  work. 

Striking,  in  the  meaning  universally  accepted  by 
all — organized  labor  included — carries  with  it  the 
very  necessary  and  important  implication  of  resum- 
ing work  after  demands  are  granted.  Striking, 
therefore,  is  not  abandoning  the  job.  On  the  other 
hand,  it  implies  the  opposite  idea — a  rather  marked 
desire  to  keep  the  job  so  as  to  get  higher  wages  or 
other  desiderata.  The  fisherman  does  not  jerk  the 
fly  past  the  trout  because  he  is  trying  to  get  the  fly 
away  from  the  trout.  The  striking  workingman  does 
not  strike  because  he  is  going  to  quit  work. 

There  is  no  reason  why  legislation  could  not  be 
enacted,  if  desired,  that  would  sharply  differentiate 
between  striking  and  the  mere  quitting  of  work.  A 
law  against  abandoning  a  job  would  be  obviously  in 
conflict  with  the  Thirteenth  Amendment.  No  one 
would  be  so  stupid  or  shortsighted  as  to  propose  any 
such  law.  And  for  that  matter,  perhaps,  there  is  no 
pressing  need  for  any  law  to  prevent  striking,  except 
where  such  striking  threatens  the  lives  or  welfare  of 
the  public. 


i98  THE  PARTY  OF  THE  THIRD  PART 

In  considering  the  entire  field  it  is  necessary  to 
make  several  clear  distinctions.  Review  the  history 
of  the  strike  in  its  general  outlines : 

The  right  to  abandon  a  job  individually  or  col- 
lectively is  unquestioned.  It  can  never  be  abridged. 

The  right  to  quit  work  individually  for  the  purpose 
of  securing  higher  wages  or  better  working  conditions 
is  unquestioned. 

The  right  to  agree  with  others  to  quit  work  for  the 
purpose  of  demanding  better  wages  or  working  con- 
ditions may  be  admitted,  as  long  as  the  public  wel- 
fare is  not  threatened. 

The  right  to  agree  with  a  large  body  of  others  to 
quit  work  and  to  hinder  or  stop  the  production  of 
essentials  in  time  of  need  is  subject  to  very  serious 
question  and  calls  for  the  intervention  of  govern- 
ment, because — 

The  right  to  agree  with  all  other  workers  to  quit 
work  until  any  and  all  demands,  economic  or  politi- 
cal, are  met,  regardless  of  the  suffering  or  deaths  of 
the  population,  is  a  thing  that  is  always  in  the  realm 
of  possibility  as  a  logical  sequence,  and  in  such  a  case 
the  existing  government  would  be  in  effect  over- 
thrown in  favor  of  an  economic  oligarchy. 

That  illustrates  the  evolution  of  the  strike  from 
a  legitimate  and  harmless  function  to  one  carry- 
ing the  gravest  menace  to  society  and  to  civilization 
itself. 

The  I.  W.  W.,  known  also  as  the  One  Big  Union, 
have  a  much  more  ambitious  conception  of  the  strike 


STRIKES  AND  LOCKOUTS  199 

than  the  primitive  idea  of  quitting  work  until  certain 
demands  concerning  wages  and  living  conditions  are 
met.  The  One  Big  Union  idea  of  a  strike  is  that  it 
is  a  revolutionary  political  measure,  not  merely  be- 
cause it  holds  possibilities  of  violence,  but  because 
the  general  strike  is  the  contemplated  final  sweeping 
climax  of  a  series  of  strikes,  and  the  sole  object  of 
the  general  strike  is  to  control  all  necessities  and 
seize  the  government  by  direct  action. 

"We  do  not  want  a  fair  day's  wage  for  a  fair 
day's  work,"  the  One  Big  Union  teachers  say  in 
their  texts.  "Such  a  thing  is  impossible.  We  pro- 
pose to  take  possession  of  the  land  and  machinery 
of  production." 

The  One  Big  Union  theory  is  the  logical  result  of 
the  growing  strike  program. 

By  growing  strike  program  I  mean  the  extension 
of  the  strike  function  beyond  that  of  merely  striking 
to  demand  better  wages  and  working  conditions.  I 
mean  the  use  of  the  strike  to  delay  or  stop  produc- 
tion of  a  given  commodity  or  to  coerce  governmental 
functions  or  officials. 

In  the  late  summer  of  1920,  during  the  Polish 
crisis,  when  there  was  some  talk  of  American  inter- 
vention, the  Chicago  Federation  of  Labor  passed  a 
resolution  urging  that  the  American  labor  bodies 
"prevent  mobilization  of  military  or  naval  forces" 
for  any  movement  to  help  Poland. 

Of  course,  any  organization  has  the  right  to  pro- 
test against  a  declaration  of  war  or  make  itself  felt 


aoo  THE  PARTY  OF  THE  THIRD  PART 

by  petition  or  memorial  to  Congress  in  the  constitu- 
tional method,  but  nothing  was  said  about  that  form 
of  protest  in  the  resolution.  The  plain  intent  was  to 
use  the  direct-action  method — "prevent  mobiliza- 
tion." Can  any  self-respecting  democracy  tolerate 
any  such  interference  with  the  process  of  govern- 
ment ?  Isn't  it  about  time  that  a  halt  were  called  on 
such  tactics? 

Eugene  V.  Debs,  the  Socialist  leader,  says:  "A 
strike  is  a  civil  war.  It  may  be  bloodless,  but  it  is 
war,  nevertheless." 

William  Haywood,  the  I.  W.  W.  chief,  says, 
"Every  strike  is  an  incipient  revolution." 

Each  of  these  men  has  a  considerable  following. 
The  growth  of  direct  action  and  syndicalism  in  Eu- 
rope has  encouraged  these  followings.  Men  of  the 
W.  Z.  Foster  type  in  the  American  Federation  of 
Labor  openly  favor  the  radical  conception. 

In  his  presentation  at  Carnegie  Hall,  New  York, 
May  28,  1920,  Mr.  Gompers  failed  to  distinguish 
between  the  two  functions  of  the  strike.  Inferen- 
tially,  at  least,  he  justified  the  use  of  the  direct-action 
political  strike  when  he  commended  the  German 
workers  for  calling  a  strike  to  forestall  Von  Kapp's 
monarchistic  designs,  and  denounced  the  Kansas  law 
because  it  would  prevent  workers  from  calling  a 
strike  for  political  purposes. 

The  Kansas  law  certainly  should  prevent  the  call- 
ing of  a  strike  for  political  purposes.  In  the  United 
States  we  govern  by  the  ballot — not  by  economic 


STRIKES  AND  LOCKOUTS  201 

force  or  coercion.  There  is  no  conceivable  contin- 
gency that  would  justify  the  use  of  the  strike  to  fore- 
stall or  bring  about  a  political  change  or  a  govern- 
mental policy.  Direct  action  certainly  has  no  place 
in  American  government. 

This  brings  us  to  the  crux  of  the  Kansas  law. 

The  Kansas  law  does  not  prevent  a  man  from 
quitting  work  for  any  lawful  reason,  and  the  test  of 
lawfulness  is  whether  the  intent  is  to  restrict  or  stop 
production  by  conspiracy. 

There  are  two  functions  to  the  strike — that  is 
clear.  One  is  the  effort  to  gain  better  wages  and 
working  conditions.  Deploring  force  as  we  do,  we 
must  admit  that  the  lack  of  a  better  method  has 
justified  the  use  of  the  strike  in  this  direction,  and 
we  propose  a  better  method.  The  other  function  is 
that  of  restricting  or  stopping  production  of  vital 
essentials  and  possibly  of  coercing  government. 

Analyzing  the  situation  in  connection  with  the 
Kansas  law,  then,  we  find  that  the  intent  of  a  strike 
is  the  pivotal  point  to  the  controversy. 

The  problem,  then,  is  to  decide  the  intent  of  the 
strike. 

W.  M.  Geldart,  Vinerian  professor  of  English  law 
at  Oxford,  and  one  of  the  recognized  legal  authorities 
of  the  world,  says: 

The  consequences  of  an  act  may  be  said  to  be  intended  when 
the  person  acting  contemplates  that  they  will  necessarily  or 
probably  follow  from  it,  whether  that  consequence  be  desired 
for  its  own  sake  or  not.  It  is  said  that  a  man  is  presumed  to 


202  THE  PARTY  OF  THE  THIRD  PART 

intend  the  probable  consequences  of  his  acts,  but  failure  to  an- 
ticipate probable  consequences  is  really  negligence  rather  than 
intention,  and  if  the  saying  is  more  than  a  rule  of  evidence  for 
ascertaining  intention,  it  only  means  that  for  some  purposes 
negligence,  no  less  than  intention,  creates  liability. 

This  is  a  rather  sweeping  interpretation  of  intent, 
but  it  doubtless  has  enough  sanction  in  jurisprudence 
to  show  that  courts  are  amply  justified  in  judging  an 
act  by  its  intent  and  in  holding  persons  strictly  ac- 
countable for  potentially  harmful  acts. 

Frank  P.  Walsh,  in  his  address  before  the  Kansas 
legislature  on  the  Industrial  Court  bill,  set  forth  the 
plausible  argument  that  the  intent  of  quitting  work 
was  impossible  to  determine,  because  the  withdrawal 
even  of  a  single  person's  labor  cut  down  production 
just  that  much,  and  that  the  reduction  of  output  was 
such  a  self-evident  result  of  withdrawal  of  labor  that 
it  would  be  impossible  to  draw  the  line.  His  argu- 
ment is  well  answered  by  F.  Dumont  Smith,  quoted 
in  Chapter  XI,  who  shows  that  the  state  is  con- 
cerned, and  may  use  its  police  power,  only  when 
the  withdrawal  of  labor  reaches  the  proportions 
of  a  menace  to  public  health  and  life.  When 
the  strike  carries  with  it  the  probable  result  of 
endangering  the  public  health  it  automatically 
falls  under  the  prohibitory  feature  of  the  Industrial 
Court  law. 

Again  it  might  be  contended  that  a  number  of 
men  could  quietly  and  in  orderly  manner  agree  to 
quit  work,  even  in  an  essential  industry  where  the 


STRIKES  AND  LOCKOUTS  203 

safety  of  the  public  is  involved,  and  not  be  in  a  con- 
spiracy.    Blackstone,  in  1765,  wrote: 

A  conspiracy  is  a  combination  by  two  or  more  men,  persons, 
or  companies,  to  bring  about  either  an  unlawful  result  by  means 
lawful  or  unlawful,  or  a  lawful  result  by  unlawful  means. 

One  may  decide  not  to  trade  at  Jones's  store. 
That  would  be  entirely  and  unquestionably  lawful. 
If  he  conspires  with  a  thousand  others  to  refuse  to 
trade  at  Jones's  store,  he  produces  an  act  which  is 
usually  held  unlawful. 

A  man  may  withdraw  his  money  from  a  bank. 
This  is  not  only  lawful,  but  necessary  in  the  course 
of  business.  If  he  conspires  with  a  thousand  others 
to  withdraw  money  from  the  bank  at  the  same  time, 
he  does  an  unlawful  act. 

Anglo-Saxon  law  is  replete  with  the  manly  instinct 
of  fair  play,  and  this  instinct  is  found  in  the  principle 
that  the  fact  of  combining  is  a  more  serious  offense 
than  the  contemplated  result  of  the  combination. 
The  damage  of  the  intrinsic  act  might  be  moderate, 
but  the  fact  that  conspiracy  was  resorted  to  is  con- 
sidered an  offense  indicating  malice  and  a  desire  to 
take  an  unfair  advantage. 

Prof.  Frederic  Jesup  Stimson  of  Harvard  ap- 
proaches the  principle  of  the  Kansas  law  when  he 
says: 

A  conspiracy  is  not  only  a  guilty  combination  of  two  or  more 
persons  for  an  unlawful  end  by  any  means,  or  for  a  lawful  end 
by  unlawful  means,  but  also  for  an  immoral  end,  a  malicious 


204  THE  PARTY  OF  THE  THIRD  PART 

end,  let  us  say,  the  ruin  of  a  third  person,  or  the  injury  of  tht 
public. 

He  says  further  that  "the  thing  that  is  criminal  is 
the  combining."  Again  he  says  of  conspiracies: 

The  American  courts  have  been  curiously  obscure  or  vacillat- 
ing on  this  point.  ...  It  is  only  of  late,  when  the  matter  has  come 
up  before  the  Federal  Supreme  Court,  that  the  courts  of  a  few 
states  which  have  been  educated  by  frequent  recurrence  of  dis- 
putes of  this  sort,  that  we  begin  again  to  see  the  principle  clearly, 
as  I  shall  venture  to  lay  it  down  here:  that  the  acts  of  a  number 
of  persons  combined  are  to  be  judged  by  their  intent.  In  indi- 
vidual acts  the  intent  is  of  no  importance  except  as  it  turns  an 
accident  into  a  crime;  chance  medley,  for  instance,  into  murder, 
or  mere  asportation  into  larcency,  or  ordinary  conversation  into 
slander;  yet  these  few  instances  serve  to  show  how  universal  is 
the  recognition  of  intent  in  the  law  and  how  little  difficulty  it 
presents.  Juries  have  very  rarely  any  difficulty  in  determining 
this  question  of  intent  in  individual  acts,  and  in  like  manner 
they  will  have  no  difficulty  when  it  is  recognized  as  the  funda- 
mental test  in  cases  of  combination — i.e.,  conspiracy. 

In  labor  combinations,  is  the  first  object  to  get  better  terms 
for  the  persons  combining,  an  increase  in  wages  or  a  reduction 
of  hours,  improved  conditions  in  factories  and  shops,  etc.,  etc., 
or  is  the  first  thing  they  are  seeking  to  do  to  injure  a  third  person, 
not  concerned  in  the  dispute,  or  to  control  the  liberty  and  con- 
stitutional right  of  the  employer  himself?  If  the  latter,  it  is 
"oppression"  within  the  meaning  of  the  early  common  law,  and 
should  be  so  held  to-day.  And  what  shall  we  say  of  the  striker 
who  tries  to  prevent  another  man  from  working?  Is  he  not 
attempting  to  control  that  man's  liberty?  Is  he  not  infringing 
upon  his  constitutional  rights? 

In  his  book,  Business  and  Government,  Dr.  Jere- 
miah W.  Jenks  differentiates  between  quitting  work 
and  one  phase  of  striking,  as  follows: 


STRIKES  AND  LOCKOUTS  205 

The  right  of  any  man,  or  of  all  men,  to  quit  work  cannot  be 
taken  away.  Very  likely  the  right  to  strike  can:  that  depends 
upon  what  is  done  after  the  quitting.  It  is  most  unfortunate 
that  the  judges,  clear-headed  as  they  usually  are,  have  not  always 
made  these  distinctions  plain,  but  often  have  confused  the  mere 
quitting  of  work  with  one  or  more  activities,  picketing,  boy- 
cotting, or  what  not.  The  legality  of  the  strike,  as  also  its 
morality,  depends  upon  the  character  of  the  measures  by  which 
it  is  supported. 

It  is  very  evident,  in  reading  the  great  mass  of 
legal  and  economic  authority  in  this  connection,  that 
the  Kansas  law  is  very  moderate  in  its  restrictive 
power,  for  legal  precedents  would  permit  it  to  go 
much  farther.  It  is  evident  that  contemporary  dis- 
cussions, so  far  as  they  have  come  under  our  notice 
— if  we  except  the  syndicalist  literature — have  not 
contemplated  the  possibility  of  the  strike  infringing 
upon  the  preserves  of  government.  That  is  to  say, 
they  lay  stress  on  the  damage  done  to  the  employer 
or  some  third  party  without  going  so  far  as  to  con- 
sider the  possible  effect  should  the  strike  be  used  as 
a  manifestation  of  economic  control. 

The  discussion  of  the  strike  as  a  political  or  direct- 
action  government  weapon  is  confined  almost  wholly 
to  the  works  on  syndicalism,  and  these,  perhaps,  are 
not  familiar  to  the  general  public.  More  is  the  pity, 
for  there  is  enough  ingenuity  and  plausibility  to 
their  propaganda  to  warrant  more  than  passing 
notice.  The  intellectual  achievements  of  the  philo- 
sophical syndicalists  are  not  to  be  scorned.  People 
should  be  ready  to  meet  their  arguments. 


206  THE  PARTY  OF  THE  THIRD  PART 

Summing  up,  then,  we  see  that  the  strike  has  come 
to  mean  vastly  more  than  merely  quitting  work.  It 
has  a  broad  and  sweeping  potentiality  that  goes  far 
beyond  the  ordinary  free  acts  of  the  individual.  The 
American  people  must  adjust  their  minds  to  new 
conceptions  of  the  strike.  Those  conceptions  are 
not  new  in  Europe.  They  have  been  the  resort  of 
French  railroad  workers  and  the  English  miners  for 
some  time.  Direct  action  by  general  strikes  is  not 
an  idle  dream  in  the  Old  World,  but  an  accomplished 
fact,  not  only  in  Russia  and  Germany,  but  in  more 
democratic  countries.  Care  must  be  taken  that  this 
country  does  not  repeat  the  mistakes  of  Europe. 
American  free  government  by  the  majority  will  of 
the  people  must  be  kept  undefiled. 

Again  I  wish  to  emphasize  the  fact  that  I  do  not 
believe  a  large  proportion  of  American  labor  favors 
the  syndicalist  kind  of  strike,  but  no  one  can  deny 
that  the  leadership  has  become  infected  with  the 
idea.  It  is  the  natural  result  of  the  lust  for  power. 
That  power,  when  achieved,  has  become  a  temptation 
tending  toward  bolder  exploits. 

The  principle  of  lockouts  is  exactly  the  same  as 
that  of  strikes,  and  it  is  exactly  the  same  as  capitalis- 
tic combinations  in  general.  The  individual  may 
close  up  his  small  shop  for  his  own  private  reasons 
and  no  one  dare  question  his  act.  But  if  he  employs 
a  large  number  of  men  and  his  lockout  means  restric- 
tion or  shortage  of  production  or  exploitation  of 
labor,  he  must  answer  to  the  general  public  as  well 


STRIKES  AND  LOCKOUTS  207 

as  to  labor.  His  business  is  impressed  with  the 
public  interest.  The  bigger  the  lockout  in  vital  in- 
dustries the  worse  the  crime  against  humanity. 
Again  the  intent  becomes  the  all-important  factor, 
and  if  there  is  conspiracy  among  employers  the  moral 
crime  is  intensified. 

Society  has  come  to  the  stage  where  it  can  and 
must  assert  its  paramountcy  to  industrial  interests 
Simple  majority  government  must  be  supreme. 


XIV 

THE    FRUIT   OF   THE    KANSAS   COAL   STRIKE 

THE  Court  of  Industrial  Relations  is  the  direct 
result  of  public  sentiment  aroused  by  the  Kan- 
sas coal  strike.  While  the  state  was  still  oper- 
ating the  mines  a  special  session  of  the  legislature  was 
called  for  the  purpose  of  enacting  some  law  which 
would  make  impossible  in  the  future  the  recurrence 
in  Kansas  of  a  thing  as  wasteful  and  dangerous  as  a 
shutdown  in  an  essential  industry. 

It  was  the  consensus  of  opinion  among  the  leaders 
of  the  legislature  that  compulsory  arbitration  offered 
no  real  remedy,  and  that  we  must  find  a  better  basis 
than  that  which  rests  upon  the  selfish  interests  of 
the  parties  involved  in  a  wage  controversy. 

A  study  was  made  of  the  industrial  courts  of  Aus- 
tralia, which  are  based  upon  arbitration,  and  of  the 
somewhat  better  results  obtained  in  Canada,  but  it 
was  decided  that  neither  of  these  systems  adequately 
met  the  situation.  Therefore  the  principle  of  arbi- 
tration was  discarded  and  the  principle  of  adjudica- 
tion adopted. 

We  Americans  are  under  a  form  of  law  and  govern- 
ment inspired  by  Anglo-Saxon  traditions.  English 


FRUIT  OF  THE  KANSAS  COAL  STRIKE    209 

is  the  language  of  our  schools,  our  courts,  our  litera- 
ture, and  our  laws.  The  ideals  we  hold  are  Anglo- 
Saxon  ideals.  The  common  law  of  England,  as  it 
was  brought  to  these  shores  by  Capt.  John  Smith  and 
his  friends  in  1607,  is  the  foundation  upon  which  our 
legal  system  is  builded  in  every  state  of  the  American 
Union,  with  the  single  exception  of  Louisiana. 

It  has  been  said  by  eminent  American  jurists  that: 

The  common  law  grew  with  society,  not  ahead  of  it.  As 
society  became  more  complex,  and  new  demands  were  made 
upon  the  law  by  reason  of  new  circumstances,  the  courts,  orig- 
inally in  England,  out  of  the  storehouse  of  reason  and  good 
sense,  declared  the  "common  law."  But  since  courts  have  had 
an  existence  in  America  they  have  never  hesitated  to  take  upon 
themselves  the  responsibility  of  saying  what  is  the  common  law; 

that: 

The  flexibility  of  the  common  law  consists  not  in  the  change 
of  great  and  essential  principles,  but  in  the  application  of  old 
principles  to  new  cases,  and  in  the  modification  of  the  rules 
flowing  from  them,  to  such  cases  as  may  arise;  so  as  to  preserve 
the  reason  of  the  rule  and  the  spirit  of  the  law; 

that: 

The  inexhaustible  and  ever-changing  complications  of  human 
affairs  are  constantly  presenting  new  questions  and  new  con- 
dition which  the  law  must  provide  for  as  they  arise;  and  the 
law  has  expansive  and  adaptive  force  enough  to  respond  to  the 
demands  thus  made  of  it,  not  by  subverting,  but  by  forming  new 
combinations  and  making  new  applications  out  of  its  already 
established  principles. 

Thus  the  law  in  all  Anglo-Saxon  countries  springs 
from  the  needs  of  the  people  and  keeps  pace  with  the 
developments  of  civilization.  Every  permanent  ad- 

14 


210  THE  PARTY  OF  THE  THIRD  PART 

dition  to  the  law  of  the  land  takes  root  in  public 
necessity,  and  grows  from  such  necessity  as  a  tree 
grows  from  the  soil. 

Under  the  common  law,  since  very  ancient  times, 
certain  industries  and  vocations  have  been  regarded 
as  impressed  or  affected  with  a  public  interest.  The 
inn,  the  blacksmith  shop,  the  grist  mill,  are  familiar 
examples.  Two  hundred  and  fifty  years  ago  a  noted 
English  jurist,  Sir  Mathew  Hale,  stated  the  principle 
of  public  interest  in  language  which  has  been  fre- 
quently quoted  by  writers  on  law  and  by  courts. 
Sir  Mathew  said,  in  substance,  that  if  the  king  him- 
self be  the  owner  of  a  public  wharf  which  all  must 
use  who  come  to  that  port  to  unload  their  goods, 
then  the  charges  which  the  owner  may  make  for  the 
use  of  his  wharf  and  other  loading  facilities  must 
not  be  exorbitant,  but  must  be  reasonable  and  fair, 
because  the  wharf  is  now  impressed  with  a  public 
interest  and  is  no  longer  a  matter  of  private  right 
only.  This  is  the  principle  of  public  interest  as 
accepted  in  all  the  English-speaking  countries.  In 
the  United  States  the  government  regulates  that 
class  of  industries  known  as  "public  utilities  "  in  the 
interest  of  the  general  welfare. 

However,  under  the  American  system,  the  legisla- 
tive body  is  often  called  upon  to  declare  and  extend 
the  law  to  new  conditions.  The  legislature  of  my 
state,  in  attempting  to  find  a  solution  for  industrial 
problems,  adhered  strictly  to  the  established  princi- 
ples of  the  common  law.  In  enacting  our  industrial 


FRUIT  OF  THE  KANSAS  COAL  STRIKE    in 

code  we  have  not  attempted  to  destroy,  nor  to  alter, 
nor  to  remove  any  of  the  ancient  landmarks  of  the 
law.  We  have  founded  this  legislation  upon  the 
principle  that  certain  industries  and  vocations  are 
affected  with  a  public  interest.  We  have  added  to 
the  long-accepted  list  of  industries  so  affected  those 
which  directly  and  vitally  influence  the  supply  of 
food,  clothing,  and  fuel.  These  three  classes  of  in- 
dustries, together  with  those  which  heretofore  have 
been  known  as  public  utilities,  are  deemed  "essential 
industries,"  and  are  by  legislative  action  declared  to 
be  subject  to  regulation.  If  the  railroads,  telephone 
lines,  electric  plants,  and  other  similar  institutions 
are  so  affected  with  a  public  interest  as  to  be  subject 
to  regulation  by  the  state,  surely  the  lawmaking  body 
has  authority  to  designate  industries  vitally  influenc- 
ing the  quantity  and  quality  of  food,  clothing,  and 
fuel  of  the  people  as  affected  with  a  public  interest. 
The  legislature  of  my  state,  in  this  new  industrial 
code,  has  attempted  to  do  two  new  things  only: 

First,  it  has  impressed  with  a  public  interest  the  manufacture 
of  food  and  clothing  and  the  production  of  fuel. 

Second,  it  has  declared  labor,  as  well  as  capital,  invested  and 
engaged  in  these  essential  industries,  to  be  impressed  with  a 
public  interest,  and  to  owe  a  public  duty. 

The  other  provisions  of  the  law  merely  establish 
the  procedure  by  which  the  Court  of  Industrial  Re- 
lations functions  in  adjudicating  controversies  and 
in  the  regulation  and  supervision  of  the  essential 
industries  "for  the  purpose  of  preserving  the  public 


212  THE  PARTY  OF  THE  THIRD  PART 

peace,  protecting  the  public  health,  preventing  in- 
dustrial strife,  disorder,  and  waste,  securing  the  regu- 
lar and  orderly  conduct  of  the  businesses  directly 
affecting  the  living  conditions  of  the  people,  and  in 
the  promotion  of  the  general  welfare." 
To  sum  up,  the  legislation 

First,  provides  that  the  operation  of  the  great  industries 
affecting  food,  clothing,  fuel,  and  transportation  is  impressed 
with  a  public  interest  and  subject  to  reasonable  regulation  by 
the  state. 

Second,  creates  a  strong,  dignified  tribunal,  vested  with  power, 
authority,  and  jurisdiction,  to  hear  and  determine  all  contro- 
versies which  may  arise  and  which  threaten  to  hinder,  delay, 
or  suspend  the  operation  of  such  industries. 

Third,  declares  it  to  be  the  duty  of  all  persons,  firms,  cor- 
porations, and  associations  of  persons  engaged  in  such  indus- 
tries, to  operate  the  same  with  reasonable  continuity  in  order 
that  the  people  of  this  state  may  be  supplied  at  all  times  with  the 
necessaries  of  life. 

Fourth,  provides  that  in  case  of  controversy  arising  between 
employers  and  employees  or  between  different  groups  or  crafts 
of  workers,  which  may  threaten  the  continuity  or  efficiency  of 
such  industries  and  thus  the  production  or  transportation  of  the 
necessaries  of  life,  or  which  may  produce  an  industrial  strife  or 
endanger  the  peaceful  operation  of  such  industries,  it  shall  be 
the  duty  of  said  tribunal,  on  its  own  initiative  or  on  the  com- 
plaint of  either  party,  or  on  the  complaint  of  the  attorney  gen- 
eral, or  on  complaint  of  citizens,  to  investigate  and  determine 
the  controversy  and  to  make  an  order  prescribing  rules  and 
regulations,  hours  of  labor,  working  conditions,  and  a  reasonable 
minimum  wage,  which  shall  thereafter  be  observed  in  the  con- 
duct of  said  industry  until  such  time  as  the  parties  may  agree. 

Fifth,  provides  for  the  incorporation  of  unions  or  associations 
of  workers,  recognizing  the  right  of  collective  bargaining  and 
giving  full  Faith  and  credit  to  any  and  all  contracts  made  in 
pursuance  of  said  right. 


FRUIT  OF  THE  KANSAS  COAL  STRIKE    213 

Sixth,  provides  for  a  speedy  determination  of  the  validity  of 
any  such  order  made  by  said  tribunal  in  the  supreme  court  of 
this  state  without  the  delay  which  so  often  hampers  the  admin- 
istration of  justice  in  ordinary  cases. 

Seventh,  declares  it  unlawful  for  any  person,  firm,  corpora- 
tion, or  association  of  persons  to  delay  or  suspend  the  production 
or  transportation  of  the  necessaries  of  life,  except  upon  applica- 
tion to  and  order  of  said  tribunal. 

Eighth,  declares  it  unlawful  for  any  person,  firm,  or  corpora- 
tion to  discharge  or  discriminate  against  any  employee  because 
of  the  participation  of  such  employee  in  any  proceedings  before 
said  tribunal. 

Ninth,  makes  it  unlawful  for  any  person,  firm,  or  corporation 
engaged  in  said  lines  of  industries  to  cease  operations  for  the 
purpose  of  limiting  production,  to  affect  prices,  or  to  avoid  any 
of  the  provisions  of  this  act,  but  also  provides  a  means  by  which 
proper  rules  and  regulations  may  be  formulated  by  said  tribunal 
providing  for  the  operation  of  such  industries  as  may  be  affected 
by  changes  in  season,  market  conditions,  or  other  reasons  or 
causes  inherent  in  the  nature  of  the  business. 

Tenth,  declares  it  unlawful  for  any  person,  firm,  or  corpora- 
tion, or  for  any  association  of  persons  to  violate  any  of  the  pro- 
visions of  the  act,  or  to  conspire  or  confederate  with  others  to 
violate  any  provisions  of  the  act,  or  to  intimidate  any  person, 
firm,  or  corporation  engaged  in  such  industries  with  the  intent 
to  hinder,  delay,  or  suspend  the  operation  of  such  industries, 
and  thus  to  hinder,  delay,  or  suspend  the  production  or  trans- 
portation of  the  necessaries  of  life. 

Eleventh,  provides  penalties  by  fine  or  imprisonment,  or  both, 
for  persons,  firms,  or  corporations  or  associations  of  persons 
willfully  violating  the  provisions  of  this  act. 

Twelfth,  makes  provisions  whereby  any  increase  of  wages 
granted  to  labor  by  said  tribunal  shall  take  effect  as  of  the  date 
of  the  beginning  of  the  investigation. 

By  means  of  this  legislation  I  believe  we  have 
established  a  program  through  which  we  will  be 
able — 


'2i4  THE  PARTY  OF  THE  THIRD  PART 

1.  To  make  strikes,  lockouts,  boycotts,  and  blacklists  in  four 
essential  industries  unnecessary  and  impossible,  by  giving  labor 
as  well  as  capital  an  able  and  just  tribunal  in  which  to  litigate 
all  controversies. 

2.  To  insure  to  the  people  of  this  state,  at  all  times,  an  ade- 
quate supply  of  those  products  which  are  absolutely  necessary 
to  the  sustaining  of  the  life  of  civilized  peoples. 

3.  To  stabilize  the  production  of  these  necessaries  to  a  great 
extent,  by  stabilizing  the  price  to  the  producer  as  well  as  the 
consumer. 

4.  To  insure  to  labor  steadier  employment,  at  a  fairer  wage, 
under  better  working  conditions. 

5.  To  prevent  the  colossal  economic  waste  which  always 
attends  industrial  disturbances. 

6.  To  make  the  law  respected,  and  discourage  and  ultimately 
abolish  intimidation  and  violence  as  a  means  for  the  settlement 
of  industrial  disputes. 

The  position  taken  by  the  Kansas  legislature  is 
that  the  state  has  the  same  right  to  take  jurisdiction 
over  offenses  committed  against  it  in  the  name  of 
industrial  warfare  that  it  has  had  in  the  creation  of 
its  other  courts  to  take  jurisdiction  over  other 
offenses. 

We  have  simply  reached  the  same  determination 
in  relation  to  industrial  strife  that  has  been  reached 
in  the  evolution  of  society  which  brought  to  us  the 
formation  of  the  criminal  and  civil  courts.  We  have 
established  a  third  court  to  meet  a  need  certainly  as 
great  as  that  which  ever  existed  to  call  for  the  crea- 
tion of  our  other  courts. 

The  industrial  war  is  the  only  private  quarrel 
which  the  government  has  allowed  to  go  unchecked. 
It  has  taken  over  all  the  others,  from  dueling  to  fist 


FRUIT  OF  THE  KANSAS  COAL  STRIKE    215 

fighting.  There  was  a  day  when  the  only  question 
any  man  asked  concerning  a  fight  was  as  to  whether 
it  had  been  a  fair  fight.  There  was  a  day  when  man 
thought  there  was  no  better  mode  of  sanctifying 
property  rights  than  the  robber-baron  method  of 
philosophy — that  he  who  had  the  might  could  take 
and  keep. 

To-day  no  man  of  reason  would  go  back  to  the 
earlier  methods,  when  men  settled  their  personal  and 
property  rights  through  feudal  strife. 

The  Kansas  law  does  not  abolish  collective  bar- 
gaining. It  legalizes  it,  and  the  court  is  not  supposed 
to  interfere  in  any  labor  controversy  until  after  the 
fullest  opportunities  for  conciliation  and  arbitration 
have  been  exhausted,  because  we  realize  that  the 
finest  basis  of  industrial  peace  is  that  which  is 
founded  upon  mutual  understanding  and  mutual  ad- 
vantage; but  when  every  honorable  effort  to  reach 
an  understanding  has  failed,  the  Kansas  court  steps 
in  and  presents  its  program  as  a  substitute  for  the 
strike. 

The  Kansas  court  contemplates  the  use  of  all  the* 
elaborate  plans  for  conciliation  and  arbitration  set 
forth  in  the  report  of  the  second  Industrial  Confer- 
ence; in  fact,  the  Kansas  program  is  the  second 
Industrial  Conference  plus  a  court  of  last  resort. 
The  second  Industrial  Conference  carries  the  thing 
up  to  a  certain  point,  and  failing,  leaves  the  issue  to 
public  sentiment.  The  Kansas  court  takes  the  same 
course,  and  failing,  settles  the  controversy  in  the 


216  THE  PARTY  OF  THE  THIRD  PART 

name  of  a  just  and  impartial  government.  One 
leaves  the  issue  to  a  public  which  has  no  power  to 
enforce  its  determination.  The  other  protects  the 
public  against  the  quarrel. 

The  most  popular  argument  against  the  court  on 
the  part  of  the  laboring  man  is  that  it  forbids  a  man 
the  right  to  quit  work.  The  law  expressly  safeguards 
the  individual  against  this  invasion  of  his  rights.  It 
protects  the  man  in  his  right  to  quit  work  and  also 
in  his  right  to  continue  on  the  job.  It  holds  that  the 
right  to  work  is  as  sacred  as  the  right  to  quit  work, 
and  the  one  must  be  as  fully  protected  by  the  state 
as  the  other. 

It  forbids  the  union-labor  official  the  privilege  to 
order  a  man  to  quit  work.  It  says  that  the  man  may 
quit  any  time  he  wishes  or  for  any  reason  which  in- 
fluences him,  but  he  shall  not  come  around  the  next 
day  with  his  pockets  full  of  dynamite  to  prevent  the 
man  from  working  who  wishes  to  continue  upon  the 
job.  It  forbids  men  the  right  to  conspire  to  close 
down  a  factory  which  is  engaged  in  the  production  of 
a  human  necessity. 

In  holding  the  Kansas  Industrial  Court  law  con- 
stitutional, Judge  Curran  of  the  Crawford  County 
district  court  said : 

I  am  not  concerned  with  the  wisdom  of  the  legislature  in  pass- 
ing this  law.  Whether  the  law  is  economically  wise  or  unwise 
is  not  for  the  court  to  say.  The  one  question  to  be  considered 
by  me  is  whether  the  law  is  in  conflict  with  the  Bill  of  Rights  or 
Constitution  of  the  United  States  or  Kansas. 

A  great  deal  has  been  said  of  the  divine  right  to  strike,  the 


FRUIT  OF  THE  KANSAS  COAL  STRIKE    217 

divine  right  to  quit  work.  In  stressing  the  "divine  right  to 
strike,"  the  divine  right  to  quit  work,  the  right  of  the  man  to 
have  employment  so  he  can  provide  for  his  wife  and  children 
has  been  sadly  overlooked.  The  divine  right  to  strike,  where  it 
affects  the  health  and  welfare  of  the  public,  must  be  relegated 
to  the  realm  where  the  divine  right  of  kings  has  been  sent. 

A  man  cannot  be  compelled  to  work,  you  say.  Certainly  not. 
I  do  not  believe  for  a  moment  that  any  member  of  the  legislature 
intended  to  make  any  man  work.  The  purpose  of  this  act  is  in 
an  orderly  way  to  give  a  man  a  chance  to  work. 

The  chief  objection  of  the  operator  is  that  the  law 
seeks  to  regulate  private  business.  It  is  clearly 
pointed  out  in  answer  to  this  that  the  law  is  an 
emergency  measure.  It  is  not  a  price-fixing  law  or 
a  wage-fixing  law,  but  a  law  for  the  protection  of  the 
public  against  the  waste  and  economic  pressure 
during  an  industrial  controversy. 

It  is  summoned  only  in  the  emergency,  for  the 
purpose  of  keeping  a  continuous  operation  of  essen- 
tial industries  during  wage  controversies.  When  the 
controversy  is  over  the  court  has  completed  its  func- 
tion. It  takes  the  same  position  toward  the  operator 
that  it  takes  toward  the  laborer — that  he  shall  not 
conspire  to  close  down  his  institution  for  the  purpose 
of  affecting  either  a  wage  controversy  or  the  price 
of  a  commodity. 

Judge  Curran,  in  handing  down  his  decision  hold- 
ing the  law  constitutional,  also  said: 

This  act  does  not  begin  to  operate,  does  not  begin  to  function, 
until  there  is  a  dispute  and  the  parties  to  that  dispute  cannot 
settle  it,  and  when  they  cannot  settle  it  they  address  themselves 
to  this  court.  Then  and  not  till  then  does  it  begin  to  function. 


2i8  THE  PARTY  OF  THE  THIRD  PART 

It  is  urged  that  it  interferes  with  the  making  of  a  contract.  No. 
It  does  not  do  that.  .  .  .  The  contending  parties  can  agree  upon 
any  wage  that  is  satisfactory  to  the  worker  and  the  employer. 
They  still  have  that  right.  There  is  no  pretense  of  taking  that 
away  and  that  cannot  be  taken  away. 

There  is  added,  of  course,  to  the  power  of  the  court 
in  its  industrial  functioning,  the  power  of  a  public 
utilities  commission  over  public  utilities. 

In  addition  to  the  objection  of  the  union-labor 
leader  and  the  operator,  there  is  also  a  class  of  aca- 
demic men  who  talk  in  a  timorous  fashion  about  the 
sanctity  of  human  rights.  These  men  disregard 
altogether  the  fundamental  fact  that  organized 
society  has  taken  over  most  of  our  sanctities. 

The  law  invades  the  sanctity  of  the  home  and  tells 
the  husband  what  his  relations  to  his  wife  shall  be, 
and  what  her  relations  shall  be  to  him.  It  has  taken 
over  the  most  sanctified  relation  of  the  parent  and 
the  child.  In  our  state  it  tells  the  parent  how  he 
shall  bring  up  the  child,  the  degree  of  comfort  in 
which  the  child  shall  live,  the  guaranty  it  shall  have 
of  comfortable  clothing  and  schoolbooks.  It  compels 
the  child  to  go  to  school,  and  forbids  the  parent  to 
interfere  in  this  matter.  It  also  forbids  the  employ- 
ment of  any  child  under  sixteen  years  of  age  in  any 
factory  or  other  dangerous  occupation. 

The  government  has  also  gone  far  to  protect  the 
comfort  of  the  public.  If  to-night  two  men  meet  in 
the  street  under  my  window  and  engage  in  a  quarrel 
over  some  subject  in  which  I  hold  no  interest,  and 
reach  a  degree  of  violence  sufficient  to  wake  me  up, 


FRUIT  OF  THE  KANSAS  COAL  STRIKE    219 

I  can  have  them  both  arrested  and  sent  to  jail,  not 
for  what  they  were  doing  to  each  other,  but  because 
they  woke  me  up. 

If  government  may  go  that  far  for  the  mere  com- 
fort of  the  public,  how  far  can  it  not  go  for  the  pro- 
tection of  the  life  and  health  of  the  people  ? 

Judge  Huggins,  the  presiding  officer  of  the  Kansas 
Industrial  Court,  said,  recently: 

The  Anglo-Saxon  people  in  general  accept  without  question 
the  authority  and  jurisdiction  of  their  courts  to  adjudicate  all 
matters  affecting  the  life,  the  liberty,  and  the  property  of  the 
citizen.  If  a  man's  right  to  life  is  justiciable,  if  his  liberty,  which 
to  the  Anglo-Saxon  is  dearer  than  life  itself,  can  be  taken  away 
from  him  by  the  judgment  of  a  court,  surely  disputes  as  to 
wages,  hours  of  labor,  and  working  conditions  are  also  subject 
to  the  adjudication  of  courts.  A  man  who  has  no  faith  in  the 
courts  has  no  place  in  a  government  of  democratic  institutions. 

The  most  astonishing  and  disappointing  develop- 
ment since  the  passage  of  the  law  has  been  the  de- 
termined opposition  of  union-labor  leaders  that  it 
shall  not  function.  The  court  has  now  rendered  more 
than  a  dozen  decisions  which  relate  to  wage  cases, 
and  in  practically  every  one  it  has  increased  wages  in 
obedience  to  the  justice  of  the  situation.  These 
awards  have  been  received  without  gratitude  by  the 
laborers  and  obeyed  without  contest  by  the  operators. 

In  one  instance,  that  of  the  railway-car  men  of  the 
Pittsburg-Joplin  district,  the  president  of  the  Kansas 
Federation  of  Labor  brought  the  petition  for  an 
increased  wage.  Upon  a  full  hearing  of  the  case  the 
petition  was  granted  and  the  award  asked  for  re- 


220  THE  PARTY  OF  THE  THIRD  PART 

ceived.  Thousands  of  railway  men  are  benefiting 
as  the  result,  yet  the  president  of  the  Kansas  Fed- 
eration of  Labor,  who  brought  the  action  in  court, 
has  been  fighting  the  court,  and  gives  as  his  reason 
that  the  national  organization  to  which  he  belongs  is 
opposed  to  the  principle  of  the  law. 

Samuel  Gompers  began  to  fight  the  law  before  he 
had  read  it.  The  entire  group  of  radicals  in  the 
leadership  of  labor  is  fighting  the  law,  even  without 
inquiring  as  to  whether  it  may  be  a  blessing.  Their 
reason  is  apparent.  If  the  Kansas  law  functions,  it 
relieves  the  situation  of  the  necessity  of  a  highly  paid 
leadership.  The  agitator's  occupation  is  gone.  One 
of  the  orders  sent  out  from  a  national  labor  leader 
when  the  Kansas  legislature  was  in  session  was  to 
the  effect  that  the  Kansas  law  must  be  kept  from 
spreading. 


XV 

THE   WEAKNESSES   OF  ARBITRATION 

THE  typical  industrial  arbitration  board  is  no,, 
an  impartially  minded  tribunal  at  all,  but  a 
body  composed  chiefly  of  special  pleaders  and 
advocates. 

According  to  the  general  understanding,  arbitra- 
tion is  the  act  of  adjusting  a  dispute  by  an  unofficial 
private  board  consisting  of  three  elements,  one 
chosen  by  each  of  the  two  contending  parties,  and 
the  third  selected  by  the  two  already  chosen.  The 
number  of  elements  may  vary,  but  the  general  prin- 
ciple running  through  arbitration  is  that  the  con- 
tenders are  heavily  and  equally  represented.  There 
may  or  may  not  be  neutral  representatives.  In  the 
great  majority  of  industrial  cases  the  neutral  part  of 
the  tribunal  is  outweighed,  and  the  major  part  of  it 
is  composed  of  persons  who  are  prejudiced  toward 
one  side  or  the  other  of  the  controversy  at  hand. 

Let  us  assume  that  the  three  elements  are  persons, 
designated  A,  B,  and  C.  A  and  B  either  belong  to 
the  two  contending  groups  or  are  known  to  hold  such 
views  as  will  assure  their  decision  in  favor  of  the 
group  that  chooses  them.  They  go  into  the  meeting 


222  THE  PARTY  OF  THE  THIRD  PART 

with  their  minds  made  up  to  vote  for  their  own 
special  interest  and  to  obtain  the  maximum  award. 
This  is  not  mere  theory — it  is  a  fact  backed  up  by 
practical  observation.  Their  services  are  therefore 
valueless  because  equally  offsetting,  and  as  far  as 
an  impartial  decision  is  concerned  they  might  as  well 
be  eliminated  altogether,  leaving  C  to  decide  the 
case  alone  after  hearing  their  pleadings. 

In  effect,  then,  this  third  element,  C,  being  theo- 
retically disinterested,  is  a  kind  of  an  industrial  court 
in  himself.  The  other  two  parties  are  mere  attorneys 
for  one  side  or  the  other.  Now  what  about  this  un- 
official court,  C,  that  remains?  What  value  may  be 
placed  upon  his  decision  which  usually  prevails  in 
the  form  of  a  compromise  ? 

It  is  entirely  possible  that  the  third  party  may  be 
favorably  disposed  toward  both  capital  and  labor 
and  be  heedless  of  the  interest  of  the  public.  For 
instance,  he  might  stipulate  an  unreasonable  raise 
in  wages  and  an  unreasonable  advance  in  the  price 
of  a  product  as  a  convenient  mode  of  getting  rid  of 
the  question,  thus  unduly  benefiting  both  contend- 
ing parties  at  the  expense  of  the  public. 

Being  chosen  for  a  specific  purpose,  he  is  not  an- 
swerable to  the  public.  He  may  join  with  A  or  B 
and  effect  a  partisan  decision,  leaving  one  of  the 
groups  rebellious  and  dissatisfied,  or  he  may  effect 
a  compromise.  In  any  case,  the  two  contending 
groups  enter  the  arrangement  knowing  that  the  de- 
cision is  not  binding,  and  the  whole  affair  becomes 


THE  WEAKNESSES  OF  ARBITRATION  223 

nothing  more  than  a  debate  and  a  discussion  of  mat- 
ters already  known. 

It  is  argued  that  arbitration  has  worked  well  in 
the  case  of  boundary  disputes  and  similar  private 
controversies.  Let  us  grant  this  is  true.  The  fact 
remains  that  in  such  disputes  the  paramount  interest 
of  the  public  scarcely  ever  enters  as  a  factor.  No 
class  interest  is  involved.  The  arbiters  are  compara- 
tively open-minded  because  there  is  no  historic  or 
deep-seated  prejudice  to  be  overcome.  But  here  is 
the  most  important  factor  of  all,  and  this  factor  is 
usually  overlooked  by  the  champions  of  arbitration. 
If  civil  arbitration  fails,  the  contending  parties  know 
they  must  resort  to  the  court  of  law;  hence  they  are 
constrained  always  to  accept  what  their  consciences 
tell  them  to  be  reasonably  fair  by  the  knowledge  that 
there  always  lurks  in  the  background  the  resort  to 
the  process  of  law,  which  may  not  be  overridden. 
It  is  the  law  standing  in  the  background  that  makes 
arbitration  successful  in  civil  disputes.  Hence  the 
summarized  history  of  arbitration  in  so  far  as  it 
is  successful  really  argues  in  favor  of,  rather  than 
against,  the  establishment  of  an  industrial  tribunal 
backed  by  the  power  of  government. 

The  great  difficulty  with  industrial  arbitration  is 
that  it  has  never  been  backed  by  any  satisfactory 
resort  to  law.  Participants  have  gone  into  it  with 
skeptical  minds  and  without  a  feeling  of  respect  for 
the  anticipated  findings,  which  have  been  discounted 
in  advance. 


224  THE  PARTY  OF  THE  THIRD  PART 

The  history  of  Anglo-Saxon  law  contains  many 
instances  of  resort  to  arbitration  in  industrial  dis- 
putes. Under  the  Elizabethan  statutes  conflicts  over 
wages  and  other  labor  questions  were  placed  in  the 
hands  of  magistrates,  and  the  acts  applied  only  to 
certain  trades.  Later  the  power  was  taken  from  the 
magistrates  and  lodged  in  the  hands  of  chosen  01 
appointed  referees. 

In  1824  the  allied  acts  were  consolidated  and  re- 
placed by  the  Act  of  5  Geo.  IV,  Cap.  96,  entitled, 
"An  act  to  consolidate  and  amend  the  laws  relative 
to  the  arbitration  of  disputes  between  masters  and 
workmen."  This  was  modeled  after  the  French  Con- 
seils  des  Prud'hommes,  to  which  reference  will  be 
made  later.  It  provided  for  compulsory  submission 
to  arbitration.  A  justice  of  the  peace  or  a  board 
named  by  him  heard  and  decided  the  case.  Wages 
were  not  set  except  by  mutual  consent  of  the  two 
parties.  This  act  is  still  enforceable,  but  seems  to 
be  rarely  employed. 

The  obsolescence  of  this  act  may  be  partially  ex- 
plained because  of  the  fact  that  industrial  disputes, 
until  modern  times,  did  not  assume  the  proportions 
of  public  menace,  and  under  primitive  industrial 
conditions  the  courts  found  it  a  thankless  task  to 
exercise  what  seemed  to  be  meddling  in  private  and 
very  localized  jangles.  The  virtue  of  the  act  does 
not  apply  in  the  case  of  the  modern  industrial  court. 

The  Conseil  des  Prud'hommes,  in  France  and  Bel- 
gium, is  a  very  interesting  development  along  the 


THE  WEAKNESSES  OF  ARBITRATION  225 

line  of  an  effort  to  adjudicate  industrial  disputes.  It 
was  established  at  Lyons  by  decree  of  Emperor 
Napoleon  I,  March  18,  1806.  On  June  I,  1853,  the 
law  was  amended,  giving  employers  and  employees 
equal  representation.  Although  this  tribunal  shows 
some  of  the  attributes  of  an  industrial  court,  it  bears 
the  same  old  defect  of  being  composed  mostly  of 
special  pleaders. 

At  first  the  members  were  elected,  but  later  the 
positions  were  made  appointive.  The  conseils  are 
judicial  tribunals  established  by  the  request  of  the 
individual  city  affected.  This,  by  the  way,  presup- 
poses a  localized  condition  which  is  not  found  in 
modern  industry.  The  officers  are  the  president, 
vice  president,  secretary,  and  six  members.  Three 
of  the  members  are  chosen  by  employers  and  three 
by  employees,  and  they  hold  office  six  years,  serving 
without  pay. 

There  are  two  bureaus  in  the  conseil.  One  is 
private  and  is  conciliatory  and  informal.  It  attempts 
to  settle  disputes  by  agreement.  The  other  bureau 
conducts  formal  trials.  It  deals  with  limited  cases. 
Those  involving  more  than  two  hundred  francs  may 
be  appealed  to  civil  courts. 

In  the  year  1878,  for  instance,  35,046  cases  were 
brought  before  the  conseils;  18,415  were  settled  in 
private,  9,046  in  the  formal  bureau,  and  formal 
judgments  were  entered  in  7,555  cases,  according  to 
Joseph  D.  Weeks  in  the  Cyclopedia  of  Political 
Science.  Of  the  causes,  21,368  related  to  wages. 

15 


226  THE  PARTY  OF  THE  THIRD  PART 

The  history  of  the  conseil  is  instructive  in  that  it 
is  a  move  in  the  direction  of  industrial  adjudication. 
It  demonstrates  that  government  may  profitably 
intervene  in  industrial  disputes.  The  weakness,  as 
indicated,  lies  in  the  fact  that  it  leaves  the  interest 
of  the  public  in  a  subordinate  position,  this  being 
due,  undoubtedly,  to  the  fact  that  it  was  formed 
under  primitive  industrial  conditions  when  the 
public  was  not  materially  menaced  by  industrial 
disputes. 

The  conseil  has  the  same  fault  as  the  typical  arbi- 
tration board — that  of  being  loaded  up  with  men 
representing  specific  interests — advocates  rather  than 
judges.  It  seems  that  the  permanent  body,  consist- 
ing of  three  officers,  is  the  real  tribunal,  the  other  six 
being  special  pleaders.  Take  away  the  six  "pru- 
d'hommes"  and  make  the  conseil  a  state  national 
body  and  you  will  have  something  like  the  industrial 
court. 

Turning  back  to  England  again,  we  find  that  the 
compulsory  arbitration  act  was  superseded  by  volun- 
tary arbitration,  and  an  attempt  to  give  this  legal 
standing  was  made  in  the  Lord  St.  Leonards  Act, 
which  provided  for  a  council  of  conciliation  upon  the 
joint  petition  of  masters  and  workmen.  The  award 
was  final  and  conclusive,  but  wages  could  not  be  set 
except  by  mutual  consent. 

In  1872  another  act  for  binding  arbitration  was 
passed  but  not  often  employed.  The  pendulum  then 
swung  back  to  voluntary  arbitration  again,  and  Mr. 


THE  WEAKNESSES  OF  ARBITRATION   227 

Rupert  Kettle  was  knighted  because  of  his  service 
in  promoting  this  form  of  peacemaking. 

Throughout  the  history  of  industrial  arbitration 
there  occurs  the  phenomenon  of  swinging  from  com- 
pulsory to  voluntary  and  back  again.  Neither  has 
proven  satisfactory.  The  ideal  spirit  of  arbitration 
is  inherently  that  of  voluntary  agreement,  and  it 
cannot  be  bent  to  the  form  of  compulsion.  The 
contenders  cannot  feel  great  respect  for  the  decisions 
of  bodies  composed  mostly  of  special  pleaders,  no 
matter  how  able  or  high-minded  the  pleaders  may  be. 
The  atmosphere  of  the  arbitration  board  is  not  that 
of  calm,  detached  impartiality,  but  of  prejudiced  and 
clashing  viewpoints,  of  pulling  and  hauling  and 
jockeying  for  position. 

Voluntary  arbitration  proves  inadequate  because 
it  cannot  be  enforced  and  neither  side  is  bound  to 
accept  the  decision.  The  proceedings  amount  to 
nothing  more  than  a  debate  and  a  comparison  of 
notes. 

Compulsory  arbitration  in  great  industrial  dis- 
putes proves  inadequate  because  it  is  founded  on  the 
wrong  principle.  It  is  founded  on  the  principle  that 
a  body  composed  mostly  of  special  interests  or  spe- 
cial-interest advocates  may  be  given  authority  by 
the  government.  Such  a  body  is  foreordained  to 
failure.  We  do  not  decide  divorce  cases  by  setting 
up  a  board  of  three — one  representing  the  women, 
another  representing  the  men,  and  the  third  repre- 
senting some  one  else  whose  status  is  not  clear.  We 


228  THE  PARTY  OF  THE  THIRD  PART 

place  the  case  wholly  in  the  hands  of  a  disinterested 
tribunal  and  the  tribunal  represents  the  majesty  of 
the  law — the  government  of  the  state.  This  is  done 
not  merely  to  adjust  the  trouble  between  the  man 
and  his  wife,  but  in  the  interest  of  the  community  as 
a  whole. 

Compulsory  arbitration  has  not  had  good  results 
in  Australia.  In  order  to  bring  about  a  clearer  under- 
standing of  the  situation  as  related  to  the  Kansas 
court,  attention  will  be  called  to  the  contrast. 

Australia  has  several  industrial  courts,  with  as 
many  codes  as  there  are  courts,  but  the  fundamental 
principle  of  each  one  of  them  is  arbitration.  All  the 
orders  and  awards  of  these  courts  of  arbitration  are 
enforced  by  means  of  money  penalties,  which  vary 
from  a  thousand  pounds,  for  violation  of  the  pro- 
visions against  strikes  and  lockouts,  to  ten  pounds. 
These  penalties,  so  far  as  labor  is  concerned,  are 
levied  only  against  registered  unions.  It  is  obvious, 
of  course,  that  these  fines,  which  must  be  collected 
in  some  civil  court,  as  other  money  judgments  are 
collected,  have  had  little  effect  in  really  penalizing 
unions. 

Another  feature  of  both  the  Australian  and  New 
Zealand  law  is  that  a  union-labor  organization  which 
has  not  been  registered  under  the  law  is  exempt  from 
the  operation  of  the  court,  and  there  is  no  provision 
in  unions  of  this  sort  for  even  the  arbitration  of  their 
difficulties. 

The  Kansas  law  deals  directly  with  employers  and 


THE    WEAKNESSES  OF  ARBITRATION   229 

workers  and  by  the  group  or  craft  of  workers  in  any 
industry  affecting  the  public  interest,  and  no  regis- 
tration is  required.  Any  union  or  association  which 
shall  incorporate  under  the  law  of  the  state  shall  be 
recognized  as  a  legal  entity  and  may  bargain  col- 
lectively. Individual  members  of  all  incorporate 
unions  may  avail  themselves  of  collective  bargain- 
ing by  appointing  an  officer  or  officers  to  represent 
them. 

Another  peculiar  feature  of  the  Australian  court 
is  that  either  aggrieved  party  may  appeal  from  the 
rules  of  procedure  to  the  Parliament,  an  unfavorable 
vote  from  either  house  of  which  renders  the  act  of 
the  court  void. 

In  the  Kansas  court  the  rules  of  procedure  are  pro- 
mulgated by  the  court.  There  is  no  comparison  be- 
tween the  operation  of  the  courts  and  little  compari- 
son as  to  their  related  purposes.  The  Australian 
court  has  as  its  chief  purpose  the  protection  of  arbi- 
tration agreements.  The  Kansas  court  has  as  its 
chief  purpose  the  protection  of  the  public  against 
industrial  warfare.  It  provides  for  the  impartial 
adjudication  of  the  rights  of  labor,  capital,  and  the 
public,  upon  its  own  initiative. 

In  Australia  the  court  takes  cognizance  only  of 
the  agreements  of  arbitration  in  all  industries,  and 
to  be  eligible  to  the  use  of  the  court  the  union  must 
be  incorporated.  It  is  founded  wholly  upon  the 
principle  of  arbitration  and  was  originated  primarily 
by  labor  unions  for  the  encouragement  of  union 


23o  THE  PARTY  OF  THE  THIRD  PART 

organization.  It  has  no  interest  in  the  rights  of  the 
public  and  no  means  of  protecting  these  rights. 

The  Kansas  law  takes  cognizance  of  disputes, 
grievances,  and  conditions,  acting  through  complaint 
or  upon  its  own  initiative,  and  limiting  its  endeavor 
to  essential  industries.  It  is  based  upon  the  oldest 
theory  of  government  that  these  industries  are  im- 
pressed with  a  public  interest  and  are  therefore  sub- 
ject to  reasonable  regulation  for  the  welfare  of 
society. 

One  is  a  court  of  arbitration,  with  the  usual  pre- 
liminary steps  of  conciliation;  the  other  is  a  court  of 
justice,  presided  over  by  impartial  judges. 

There  is  no  appeal  from  the  decision  of  the  courts 
of  arbitration  in  Australia,  except  to  the  Parliament. 
In  the  Kansas  court  there  is  an  appeal  to  the  supreme 
court  of  the  state,  whose  decision  is  final. 

The  experiments  in  Australia  and  New  Zealand 
provide  absolutely  no  precedent  for  the  Kansas 
effort.  They  are  more  nearly  in  line  with  the  pro- 
gram of  the  second  Industrial  Conference  than  they 
are  with  the  Kansas  Industrial  Court. 

In  Australia  and  New  Zealand  the  costs  of  the  case 
are  taxed  against  the  party  losing  the  suit  in  the 
same  manner  as  costs  are  taxed  in  our  civil  courts, 
and  security  for  costs  may  be  required  by  the  court 
before  the  case  is  taken. 

In  Kansas  the  state  provides  for  all  the  costs. 

The  Australian  Act,  which  is  entitled  "An  Act 
relating  to  the  commonwealth  Court  of  Conciliation 


THE  WEAKNESSES  OF  ARBITRATION   231 

and  Arbitration,"  was  enacted  in  1911,  and  pertained 
only  to  people  engaged  in  public  service,  and  service 
of  any  public  institution  or  authority  of  the  common- 
wealth; it  includes  all  persons  employed  in  any 
service  in  any  capacity,  whether  permanently  or 
temporarily  under  the  commonwealth,  but  does  not 
include  persons  employed  in  the  naval  or  military 
forces. 

This  Act  provides  that  an  association  of  employees 
under  the  commonwealth  may  be  registered  under 
the  Act,  which  association  gives  the  names  of  each 
member,  and  the  association  has  the  privilege  of 
filing  a  complaint  before  the  Court  of  Commonwealth 
Conciliation  and  Arbitration  for  any  claim  relating 
to  salaries,  wages,  rates  of  pay,  terms  of  condition  cf 
servitude.  The  Public  Service  Commissioner  and  the 
Minister  of  any  department  of  state  affected  by 
the  claim  shall  be  entitled  to  be  represented  before 
the  court  in  the  hearing.  Any  such  claim  may  be 
by  the  court  referred  to  a  judge  of  the  state  court 
or  special  magistrate  of  the  commonwealth  for  in- 
vestigation and  report,  and  no  costs  are  allowed, 
and  under  such  proceedings  no  counsel  or  solicitor 
shall  be  employed.  Every  award  made  by  the  court 
shall  be  laid  before  Parliament,  as  this  Act  pertains 
only  to  public  service. 

The  Canadian  Industrial  Disputes  Investigation 
Act  has  resulted  in  some  success  in  averting  strikes. 
In  the  period  of  1910  to  1916,  applications  for  the 
appointments  of  investigation  boards  were  received 


THE  PARTY  OF  THE  THIRD  PART 

to  the  number  of  215,  involving  350,000  employees. 
In  183  of  the  applications  boards  were  granted,  the 
remaining    cases     being    settled    without    boards. 
Strikes  were  averted  in  all  but  21  cases. 
The  general  provisions  of  the  Act  are: 

Either  party  to  a  dispute  may  make  application  to  the  Minis- 
ter of  Labor  for  the  appointment  of  a  Board  of  Conciliation  and 
Investigation,  to  be  composed  of  three — one  from  each  party 
to  the  dispute,  appointed  by  the  Minister,  the  th  rd  appointed 
on  the  recommendation  of  these  two. 

It  does  not  apply  to  disputes  affecting  less  than 
ten  employees. 

If  the  board  does  not  effect  a  settlement  it  makes 
a  complete  report  to  the  Minister,  recommending  a 
course  of  action,  all  of  which  is  published  in  the 
official  paper  of  the  Labor  Department.  Witnesses 
are  compelled  to  testify,  and  full  powers  of  investi- 
gation are  granted.  Proceedings  are  held  publicly, 
except  when  otherwise  determined. 

Strikes  or  lockouts  are  prohibited  pending  or  prior 
to  the  reference  of  the  dispute  to  the  board.  After 
the  decision  strikes  and  lockouts  are  permissible. 
Violations  are  punishable  by  fines. 

Either  party  may  agree  in  writing  to  abide  by  the 
decision  of  the  board.  Courts  shall  not  recognize 
testimony  before  the  board. 

It  seems  that  the  employers  favor  this  Act,  but 
the  labor  organizations  are  against  it.  In  1916  the 
Trades  and  Labor  Congress  of  Canada  voted  unani- 
mously for  its  repeal. 


THE  WEAKNESSES  OF  ARBITRATION   233 

It  will  be  seen  that  this  board  has  the  same  defect 
as  the  typical  industrial  arbitration  board,  and  it 
lacks  the  power  to  proceed  to  a  logical  conclusion. 

After  considerable  discussion  the  legislature  of  the 
state  of  New  York  has  passed  an  arbitration  Act  by 
which  arbitration  agreements  in  contracts  volun- 
tarily entered  into  are  valid,  enforceable,  and  irrevo- 
cable. This  arrangement  is  somewhat  like  that  pro- 
posed by  the  President's  Industrial  Conference,  which 
will  be  discussed  later. 

The  Kansas  Industrial  Court  is  not  conducted 
upon  the  principle  of  arbitration,  but  it  accomplishes 
all  the  good  ends  of  the  conciliation  and  arbitration 
boards  as  an  incidental  function. 

It  has  the  power  to  investigate  housing,  living 
conditions,  working  conditions,  wages,  and  other  pos- 
sible causes  for  dispute.  It  has  the  power  to  remedy 
evils.  For  example,  the  court  found  that  in  the 
Kansas  coal-mine  district  the  operators  were  loaning 
money  that  already  belonged  to  the  miners.  The 
miners  would  sometimes  become  short  of  money 
before  the  semimonthly  pay  day,  and  would  get  an 
advance.  The  period  of  advance  averaged  about 
one  week.  The  operators  were  charging  10  per  cent 
for  this  service,  or  at  the  rate  of  520  per  cent  a  year. 
In  eighteen  minutes  the  court  made  a  ruling  that 
abolished  this  practice,  and  thereby  saved  the  miners 
much  money.  There  are  many  other  instances  of 
practical  humanitarian  things  the  court  has  done  as 
a  part  of  its  day's  work,  the  constant  aim  being  to 


234  THE  PARTY  OF  THE  THIRD  PART 

do  away  with  friction.  Frequently  forma!  court 
orders  are  unnecessary.  A  hint  is  sufficient.  Never 
before  was  there  a  body  with  authority  that  could 
step  in  and  remove  the  cause  of  industrial  discontent 
in  this  way. 

The  court  has  the  power  to  subpoena  witnesses  and 
hold  informal  hearings,  at  which  both  sides  may 
present  their  claims.  It  has  access  to  the  services  of 
trained  engineers,  scientific  workers,  and  welfare  ex- 
perts. It  has  the  power  to  get  disputants  to  talk 
things  over  across  the  table  and  arrive  at  an  unofficial 
agreement.  It  has  already  prevented  several  clashes 
in  that  way. 

Every  good  function  attributed  to  arbitration  and 
conciliation  boards  has  been  appropriated  by  the 
Kansas  tribunal,  and  the  weak  features  have  been 
avoided. 

The  chief  fault  of  industrial  arbitration,  funda- 
mentally, is  not  that  of  commission,  but  of  omission. 
It  is  only  a  rudimentary  and  defective  form  of  adjudi- 
cation not  suited  to  the  handling  of  sweeping  indus- 
trial issues.  It  omits  what  is  most  necessary  in  ad- 
judication— namely,  inherent  and  fairly  constructed 
authority,  and  the  application  of  police  -  power 
principles. 

The  only  reason  arbitration  is  successful  in  bound- 
ary disputes  and  similar  squabbles  is  that  people 
resort  to  it  with  the  knowledge  that  if  it  fails  there  is 
the  law  standing  in  the  background,  with  full  power 
to  act. 


THE  WEAKNESSES  OF  ARBITRATION   235 

If  industrial  adjudication  is  to  be  successful  there 
must  be  the  background  of  law  there  also.  There 
must  be  some  unquestioned  power  to  back  up  de- 
cisions, and  that  power  must  grow  out  of  the  knowl- 
edge that  the  tribunal  is  not  a  cabal  of  clashing 
special  interests  weighed  down  under  suspicion  and 
pressure,  but  an  impartial  body  representing  only  the 
public  and  its  government — answerable  only  to  the 
public  and  its  government — impressed  with  the 
knowledge  that  exact  justice  to  labor  and  capital 
alike  is  ultimately  the  thing  most  to  be  desired  from 
the  standpoint  of  public  welfare. 

In  the  United  States  the  principle  of  arbitration 
has  been  employed  often,  and  a  vast  amount  of  effort 
has  been  expended  upon  various  modifications  of  the 
principle.  To  prove  that  the  general  principle  has 
been  a  failure  it  is  only  necessary  to  call  attention  to 
the  fact  that  the  strike  evil  has  constantly  increased. 

President  Wilson,  on  December  I,  1919,  called  a 
number  of  highly  qualified  and  conscientious  public 
men  together  in  a  conference,  in  an  effort  to  formu- 
late a  plan  looking  toward  relief  from  industrial 
strife.  After  a  few  weeks  of  consultation  a  prelimi- 
nary report  was  filed.  After  New- Year's  the  group 
reconvened  and  spent  nearly  two  months  in  making 
plans.  On  March  6,  1920,  the  final  report  was  made 
public. 

To  one  who  has  not  been  up  against  the  hard, 
practical  facts,  the  plan  looks  attractive.  Even  one 
who  has  been  through  the  hard  knocks  of  industrial 


236  THE  PARTY  OF  THE  THIRD  PART 

conflict  is  impelled  to  yield  a  large  measure  of  ad- 
miration to  the  sincere  sermons  contained  in  the 
report  and  to  the  effort  to  get  somewhere  on  the 
project  of  a  tribunal  without  breaking  ikons. 

The  findings  are  excellent  as  far  as  they  go,  but 
they  stop  just  short  of  effectiveness — the  thing  most 
needed.  The  report  seems  to  be  built  upon  the  phi- 
losophy that  the  important  thing  is  to  bring  about 
that  elusive  matter  of  voluntary  co-operation  be- 
tween the  two  contending  elements  without  restrict- 
ing the  liberties  of  the  two  or  protecting  the  interests 
of  the  public.  The  rights  of  the  public  are  very  much 
in  the  background,  and  virtually  nonrecognized. 

In  discussing  the  development  of  industrial  rela- 
tions from  the  dawn  of  history,  the  report  says: 

While  the  relations  between  employers  and  employees  are 
primarily  a  human  problem,  the  relationship  in  its  legal  aspects 
is  one  of  contract.  In  the  development  and  establishment  of 
this  right  of  contract  on  the  part  of  workmen  is  written  the 
history  of  labor. 

Farther  on  it  says  of  the  freedom  of  labor: 

It  may  aid  in  comprehending  the  work  of  the  conference  to 
recall  that  the  present  condition  of  freedom  has  come  about  not 
so  much  from  positive  laws  as  from  the  removal  of  restrictions 
which  the  laws  impose  upon  the  rights  and  freedom  of  men. 
The  conference  confesses  that  in  the  prosecution  of  its  work  it 
has  been  animated  by  a  profound  conviction  that  this  freedom 
that  has  been  wrought  out  after  many  centuries  of  struggle 
should  be  preserved. 

Section  II  says  of  any  decision  of  the  proposed 
tribunal: 


THE  WEAKNESSES  OF  ARBITRATION   237 

It  shall  have  the  full  force  and  effect  of  a  trade  agreement, 
which  the  parties  to  the  dispute  are  bound  to  carry  out. 

The  whole  system  of  proposed  machinery,  there- 
fore, resolves  itself  simply  into  a  device  for  hastening 
and  facilitating  collective  bargaining.  The  public  is 
excluded  as  a  factor  in  the  resultant  decision,  for 
that  decision  is  regarded  as  a  private  contract 
and  not  as  a  government  decree.  It  takes  no 
advance  step  so  far  as  fundamental  philosophy  is 
concerned. 

The  report  proceeds  in  two  phases — the  recom- 
mendations involving  legislation,  and  the  purely  ad- 
visory opinions.  The  legislative  recommendations 
are  conservative  and  hesitant,  suggesting  only  a 
national  tribunal  and  regional  tribunals  and  inquiry 
boards,  whose  sole  purpose  shall  be  to  narrow  the 
field  of  arbitration  and  hasten  and  facilitate  indus- 
trial agreements  between  employers  and  employees. 
No  penalty  is  provided  except  publicity. 

The  conference  evidences  much  alacrity  in  desert- 
ing the  concrete  in  favor  of  the  abstract.  If  the  plan 
itself  guaranteed  the  performance  of  all  the  fine 
things  it  preaches,  this  report  would  have  been  an 
industrial  Magna  Charta,  for  it  contains  a  great 
abundance  of  good  intention  and  intelligent  thought. 
The  great  trouble  is  that  merely  recommending  or 
painting  the  beauties  of  industrial  peace  does  not 
insure  industrial  peace  any  more  than  the  prospec- 
tuses and  reports  of  the  Federal  Trade  Commission 
prevent  profiteering. 


238  THE  PARTY  OF  THE  THIRD  PART 

The  guiding  thought  of  the  conference  has  been  that  the 
right  relationship  between  employer  and  employee  can  be  best 
promoted  by  the  deliberate  organization  of  that  relationship 
[says  the  report].  That  organization  should  begin  within  the 
plant  itself.  Its  object  should  be  to  organize  unity  of  interest 
and  thus  to  diminish  the  area  of  conflict  and  supply,  by  organized 
co-operation  between  employers  and  employees,  the  advantages 
of  that  human  relationship  that  existed  between  them  when 
industries  were  smaller.  Such  organization  should  provide  for 
the  joint  action  of  managers  and  employees  in  dealing  with  their 
common  interests.  It  should  emphasize  the  responsibility  of 
managers  to  know  men  at  least  as  intimately  as  they  know 
materials,  and  the  right  and  duty  of  employees  to  have  a  knowl- 
edge of  industry,  its  processes  and  policies.  Employees  need 
to  understand  their  relation  to  the  joint  endeavor  so  that  they 
may  once  more  have  a  creative  interest  in  their  work. 

Such  admirable  sermons  are  needed.  Others  of 
equal  merit  are  found  in  the  report.  They  will  re- 
ceive respectful  attention  and  will  do  good.  But 
they  are  sermons.  "The  plan  involves  no  penalties 
other  than  those  imposed  by  public  opinion,"  says 
the  introduction.  Public  opinion  was  not  getting 
much  coal  out  of  the  ground  last  winter.  Public 
opinion  has  not  stopped  profiteering.  Law,  after  all, 
is  crystallized  public  opinion.  The  Kansas  court  is 
established  upon  the  theory  that  public  opinion  has 
amply  and  sufficiently  crystallized  on  the  subject  of 
whether  class  minorities  should  be  permitted  to  ride 
roughshod  over  general  majorities. 

In  the  matter  of  prevention  of  disputes  the  con- 
ference urges  employee  representation,  though  it 
admits  that  it  "offers  no  royal  road  to  industrial 
peace."  One  valuable  and  constructive  suggestion 


THE  WEAKNESSES  OF  ARBITRATION   239 

that  deserves  special  consideration  is  that  regarding 
the  establishment  of  courses  of  instruction  in  techni- 
cal schools  and  colleges  which  shall  teach  the  prin- 
ciples of  employee  representation. 

The  recommendations  concerning  the  hours  of 
labor,  women  in  industry,  child  labor,  housing, 
wages,  and  profit  sharing,  while  they  do  not  present 
anything  new,  are  excellent  indices  of  intelligent  and 
sincere  study  on  the  part  of  the  conferees.  The  re- 
marks on  thrift  agencies  contain  much  constructive 
suggestion,  as  do  also  those  on  inflation  and  the  high 
cost  of  living.  In  taking  a  definite  stand  against  the 
unionizing  of  public  employees  in  police  or  fire-pro- 
tection service  the  conference  makes  its  position 
clear  and  logical.  The  remarks  on  agriculture  are 
generally  valid,  but  not  enough  emphasis  is  placed 
upon  the  obligation  of  labor  to  keep  its  productive 
capacity  up  to  that  of  farming. 

The  subject  of  unemployment  and  part-time  em- 
ployment is  intelligently  handled,  leading  to  that  of 
a  proposed  public  employment  clearing  house  which, 
if  established,  would  serve  as  a  parallel  with  the 
Federal  Reserve  financial  system.  It  would  dis- 
tribute labor  in  such  a  way  as  to  bring  about  the 
maximum  productiveness  in  the  nation. 

As  a  whole,  the  report  justifies  the  existence  of  the 
conference,  whose  labors  were  well  worth  while.  The 
deficiency  is  that  it  does  not  go  far  enough  and  that 
it  approaches  the  problem  from  a  purely  economic 
angle,  without  reference  to  the  rights  of  the  public. 


Z4Q  THE  PARTY  OF  THE  THIRD  PART 

This  opinion  is  given  in  a  spirit  of  sympathy  and 
appreciation  for  the  sincere  and  valuable  efforts 
made  by  the  conferees,  and  is  not  intended  as  being 
in  the  nature  of  a  judgment.  The  conference  is  of 
such  outstanding  importance  that  no  book  touching 
on  industrial  relations  could  be  complete  without 
some  discussion  of  the  conference  report.  It  is  felt 
that  emphasis  must  be  laid  upon  the  different  phi- 
losophy followed  by  the  Kansas  court,  so  there  may 
be  no  confusion,  and  so  that  comparative  study  of 
the  two  philosophies  be  stimulated.  Candor  requires 
that  the  contrast  be  made. 

Government  is  more  than  a  sordid  commercial 
transaction.  It  is  greater  than  a  collective  bargain 
between  two  special  interests.  It  is  properly  the 
will  of  all  the  people,  and  it  must  safeguard  the  wel- 
fare of  all  the  people.  Any  plan  that  places  the  big 
vital  affairs  of  life  on  the  plane  of  a  collective  bargain 
is  founded  on  a  defective  conception  of  the  due  pre- 
rogatives and  obligations  of  government.  The  de- 
cisions that  control  the  very  life  and  liberties  of  the 
people  must  be  made  on  grounds  of  impartial  public 
policy  and  general  police  powers,  and  not  upon 
grounds  of  private  expediency  or  special  interest. 
There  is  a  party  of  the  third  part  to  be  considered 


XVI 

SPECIALIZATION   IN   INDUSTRY 

IN  the  pageant  of  the  labor  movement  as  it  passes 
by,  typifying  at  first  slavery,  then  feudalism, 
then  apprenticeship,  individual  contracts,  guilds, 
and  unions,  there  is  one  great  factor  which  we  are 
likely  to  ignore. 

We  have  seen  how  organization  has  become  per- 
fected through  the  centuries  and  how  labor  has 
benefited  itself  through  that  organization.  In  the 
meantime  the  machine  process  has  been  perfected 
with  equal  rapidity.  And  with  the  development  of 
the  machine  process  there  was  developed,  as  a  corol- 
lary, the  evolution  of  the  specialist. 

Never  before  in  all  history  has  there  been  such  an 
era. 

Only  a  few  decades  ago  thousands  of  individual 
blacksmith  shops  were  at  work  turning  out  horse- 
shoes. The  individual  blacksmith  was  dependent 
wholly  upon  his  own  efforts  for  his  living.  He  took 
an  honest  pride  in  his  work.  Working  his  bellows 
and  smoking  his  pipe,  he  paused  occasionally  to  smile 
upon  a  passing  child  or  exchange  a  jocular  remark 
with  the  bystander.  As  he  saw  the  flame  turn  the 

16 


242  THE  PARTY  OF  THE  THIRD  PART 

iron  into  a  malleable  red,  and  as  he  saw  the  metal 
take  form  under  his  shrewd  blows,  the  work  he  did 
partook  of  his  own  life,  in  a  way  of  speaking,  just  as 
the  home  one  builds  or  the  song  that  one  composes. 
And  when  the  day's  work  was  done  he  looked  upon 
it,  and  it  was  good.  Ever  since  God  took  the  bit  of 
nebula  and  formed  it  into  a  world,  the  creator  has 
taken  a  pride  in  his  handiwork  and  has  felt  that  it 
was  a  thing  worth  while. 

Now  the  thousand  blacksmiths  are  taken  in  a 
body  and  put  in  a  great  factory,  and  they  stand  there 
all  day,  tending  strange  machines. 

The  machine  devours  the  raw  iron  bars  and  de- 
livers horseshoes  or  tire  rims  by  the  thousand.  One 
is  just  like  the  other.  None  bears  the  mark  of  the 
individual  worker.  The  product  streams  out  of  the 
factory  unimpressed  by  the  pride  of  personal  creation. 
One  group  of  men  specializes  on  one  limited  product. 
In  an  automobile-motor  factory  one  man  turns  out 
a  little  pin  for  a  spark  plug.  The  pins  come  out  by 
the  thousand.  The  worker  can  have  no  personal 
pride  in  the  finished  machine,  for  his  contribution  is 
only  an  insignificant,  hidden  part. 

With  nearly  all  industry  highly  organized  on  such 
bases  as  this,  the  worker  has  no  labor  incentive  ex- 
cept the  money  wage  and  whatever  of  associations 
he  can  form  in  spare  moments.  He  is  likely  to  be- 
come bitter  and  irritable.  The  personal  contact 
with  the  employer  is  gone.  Labor  becomes  a  dreary 
routine  in  a  gigantic  and  seemingly  heartless  money- 


SPECIALIZATION  IN  INDUSTRY      243 

making  mechanism.  He  is  like  a  helpless  cog,  im- 
personal and  dehumanized,  and  he  comes  to  have 
some  realization  of  this. 

The  story  of  David  Maydole  and  his  hammer  is 
something  of  an  epic  in  the  industrial  world. 

Maydole  was  a  humble  blacksmith  in  a  New  York 
village  about  a  century  ago.  One  day  a  carpenter 
came  to  him  and  told  him  to  make  the  best  hammer 
he  could.  Maydole  went  to  work  and  produced  an 
excellent  hammer.  Other  carpenters  came  to  him. 
The  contractor  then  asked  him  to  make  a  still  better 
hammer. 

"I  can't  make  any  better  hammers,"  said  Maydole. 
"Every  one  I  make  is  the  best  I  can  make." 

His  fame  spread  and  he  became  a  wealthy  manu- 
facturer at  last.  The  word  "Maydole"  stamped  on 
a  hammer  was  a  guaranty  of  its  excellence. 

He  never  allowed  a  hammer  with  his  brand  to  be 
made  by  machinery.  He  took  a  personal  pride  in 
every  one  that  went  out  of  his  factory. 

Now  hammers  are  turned  out  by  machinery  almost 
altogether.  The  machine-made  hammers  may  be  as 
good  as  those  made  by  hand,  but  they  do  not  carry 
the  impress  of  the  human  touch. 

Under  the  old  conditions  of  industry,  friction  be- 
tween employer  and  employee  was  remedied  with 
comparative  ease  because  the  worker  was  tied  to  his 
product  and  to  his  employer  by  a  personal  bond. 
Under  modern  conditions  we  need  not  only  a  great 
extension  of  employee  representation,  profit  sharing 


244  THE  PARTY  OF  THE  THIRD  PART 

and  welfare  work,  but  an  authoritative  arm  of  gov- 
ernment standing  out  in  the  background  with  power 
to  correct  and  prevent  causes  of  friction.  The  worker 
must  be  made  to  feel  that  he  is  not  left  at  the  mercy 
of  his  employer  and  that  his  only  recourse  against 
injustice  is  force  as  exerted  through  the  strike.  The 
feeling  that  cave-man  tactics  are  the  only  ones  that 
stand  between  him  and  injustice  has  the  tendency 
to  breed  bitterness  and  suspicion.  It  makes  the 
worker  feel  always  that  his  employer  is  a  potential 
enemy. 

With  the  necessity  for  strikes  replaced  by  the  ever- 
ready  protecting  arm  of  the  government,  the  feeling 
of  antagonism  will  naturally  be  abated. 

In  connection  with  the  adjudicatory  features  of 
the  industrial  court  there  is  the  machinery  for  con- 
ciliation, inquiry,  and  informal  orders  as  to  wages 
and  working  conditions.  As  time  goes  on  there  will 
be  less  and  less  tendency  to  fight  things  out  by  formal 
litigation,  and  more  and  more  of  a  tendency  to  pre- 
vent or  settle  difficulties  out  of  court.  Thus  a  con- 
stant contact  will  be  brought  about.  Employee 
representation  will  increase  as  a  natural  fruit  of  the 
court.  More  generous  profit  participation  will  be 
promulgated.  Welfare  measures  will  be  increased. 
Working  conditions  will  be  improved — all  in  preclu- 
sory  anticipation  of  court  proceedings.  A  closer 
personal  contact  will  be  brought  about  between  em- 
ployer and  employee  by  these  things.  There  will  be 
more  gathering  around  the  table.  In  this  way  the 


SPECIALIZATION  IN  INDUSTRY      245 

dehumanizing  influence  of  modern  industrial  condi- 
tions will  be  counteracted,  and  an  era  of  good  feeling 
restored. 

This  may  sound  visionary  and  idealistic  to  the 
skeptical  reader,  but  let  him  pause  and  ask  himself 
honestly  whether  anything  could  be  worse  than  the 
armed  truce  which  obtains  under  the  tooth-and-claw 
method,  where  the  only  way  of  guaranteeing  results 
is  by  force.  Is  it  not  reasonable  to  suppose  that  the 
background  of  industrial  law  will  stimulate  the  for- 
mation of  unofficial  means  of  conciliation  and  agree- 
ment, just  as  the  background  of  civil  law  has  stimu- 
lated the  working  of  unofficial  agreements  in  the 
ordinary  controversies  over  contracts  and  commer- 
cial transactions? 

It  is  said  that  in  the  New  York  Stock  Exchange  a! 
breach  of  faith  is  unknown.  Orders  are  given  and 
received  verbally,  and  purely  upon  personal  assur- 
ances. This  practice  is  made  possible,  not  because 
the  operators  are  more  honest  than  the  average  run 
of  humanity,  but  because  there  always  stands  in  the 
background  the  certainty  of  prompt  retribution  and 
civil  action  in  case  of  dereliction. 

If  there  were  no  civil  law  and  no  recourse  in  case 
of  fraud,  the  present  methods  of  the  Stock  Exchange 
would  be  impossible.  The  tooth-and-claw  method 
would  return,  and  the  finely  adjusted  mechanism  on 
Wall  Street  would  cease  to  function. 

There  has  never  been  an  era  like  that  of  the 
present.  The  great  groups  of  specialists  in  the  in- 


246  THE  PARTY  OF  THE  THIRD  PART 

dustries  will  have  to  be  co-ordinated  with  society 
and  mutual  sympathy,  and  mutual  sympathy  and 
co-operation  will  have  to  be  restored,  otherwise 
society  must  continue  to  suffer  from  the  facts  of 
inefficiency,  friction,  and  lost  motion. 

The  new  era  of  industrialism,  with  vast  new  im- 
plications, is  upon  us.  It  must  be  met  with  the 
potentiality  of  wise  and  just  governmental  regula- 
tion, otherwise  it  will  supplant  government  itself. 


XVII 

COLLECTIVE    BARGAINING 

THE  law  establishing  the  Kansas  Court  of  In- 
dustrial Relations  specifically  authorizes  and 
recognizes  the  principle  of  collective  bargain- 
ing. No  discussion  of  labor  problems  nowadays  is 
complete  without  a  reference  to  collective  bargaining, 
and  there  has  been  some  tendency  to  indorse  it  with 
a  sweeping  gesture  and  without  definition,  leaving  the 
observer  in  a  rather  confused  frame  of  mind. 

Everybody  knows  that  organized  labor  desires  to 
safeguard  collective  bargaining,  and  so  a  great  many 
people  take  a  casual  glimpse  at  it  and  say  it  is  a  good 
thing,  not  having  a  very  clear  idea  of  what  it  is  they 
are  indorsing. 

It  may  be  seriously  doubted,  in  fact,  that  all  the 
labor  leaders  really  understand  what  collective  bar- 
gaining is. 

"It  takes  two  to  make  a  bargain."  This  is  axio- 
matic and  self-evident.  And  yet  some  labor  leaders 
seem  to  act  upon  the  theory  that  it  binds  only  the 
employer. 

The  chief  difficulty  in  the  coal-strike  troubles  in 
the  summer  of  1920  was  the  fact  that  some  of  the 


248  THE  PARTY  OF  THE  THIRD  PART 

union  leaders  and  miners  deliberately  set  about  to 
violate  the  agreement  of  the  previous  winter,  which 
provided  for  a  six-day  week.  They  seemed  to  think 
that  the  employers  could  be  bound  in  the  matter  of 
wage  payments,  but  that  there  was  no  reciprocal 
obligation  on  their  part.  In  taking  such  a  stand 
they  did  more  to  injure  the  general  cause  of  collective 
bargaining  than  all  the  employers  in  America. 

It  is  one  thing  to  oppose  collective  bargaining;  it 
is  a  far  more  serious  thing  to  violate  a  bargain  that 
has  been  made.  Doubtless  employers  have  violated 
such  bargains,  and  shame  must  be  upon  them  for 
so  doing.  But  two  wrongs  do  not  make  a  right,  and 
labor  leaders  will  have  to  learn  that  contracts  must 
be  observed,  otherwise  collective  bargaining  cannot 
exist. 

A  great  many  labor  leaders  seem  to  proceed  upon 
the  theory  that  a  collective  bargain  is  merely  an 
arrangement  for  settling  a  strike,  wherein  the  em- 
ployer agrees  to  certain  demands  without  visiting 
any  retaliation  upon  any  of  the  workers.  Their 
conception  of  a  collective  bargain  is  that  it  is  a  sur- 
render to  a  collective  threat.  In  other  words,  they 
consider  it  a  one-sided  arrangement  in  which  the 
employer  is  bound,  but  not  the  employees. 

The  Kansas  law  seeks  to  place  collective  bargain- 
ing upon  a  dignified  and  well-observed  plane,  by 
recognizing  its  validity  and  providing  facilities  for 
making  bargains,  not  only  by  incorporated  unions, 
but  by  groups  of  unorganized  laborers. 


COLLECTIVE  BARGAINING          249 
Section  9  of  the  Industrial  Court  law  says:, 

The  right  of  every  person  to  make  his  own  choice  of  employ- 
ment and  to  make  and  carry  out  fair,  just,  and  reasonable  con- 
tracts and  agreements  of  employment  is  hereby  recognized. 

Section  14  says: 

The  right  of  such  corporations,  and  of  such  unincorporated 
unions  or  associations  of  workers,  to  bargain  collectively  for 
their  members,  is  hereby  recognized. 

This  furnishes  protection  to  unincorporated  unions 
in  addition  to  that  afforded  to  incorporated  unions. 

There  is  a  curious  paradox  about  the  subject  of 
collective  bargaining  which  illustrated  the  confusion 
of  mind  that  exists.  Labor  leaders  are  quite  unani- 
mous in  saying  that  "labor  is  not  a  commodity 
to  be  bartered,"  to  borrow  the  language  used  by 
Frank  P.  Walsh.  How  can  the  two  standpoints 
be  reconciled? 

The  only  way  the  confliction  can  be  cleared  up  is 
by  assuming  that  the  collective  bargain  is  a  one-sided 
arrangement — that  is,  that  the  group  does  not  sell 
its  services  to  the  employer  upon  certain  terms — it 
only  makes  a  negative  bargain  by  telling  the  employer 
that  the  members  of  the  group  will  not  work  unless 
certain  demands  are  met.  If  there  were  a  positive 
bargain,  of  course  the  group  would  be  bartering  its 
services  as  it  would  a  commodity. 

If  collective  bargaining  is  to  be  put  upon  a  dignified 
plane,  of  course  it  must  have  more  than  a  negative 
meaning.  It  must  work  both  ways.  If  a  positive 


25o  THE  PARTY  OF  THE  THIRD  PART 

two-way  bargain  cannot  be  made,  there  surely  must 
be  something  wrong  somewhere. 

There  may  be  good  reasons  why  labor  leaders  will 
eventually  cease  to  stress  collective  bargaining  when 
it  is  seen  that  it  must  necessarily  imply  the  com- 
modity theory  of  labor  to  some  extent.  Labor  has 
two  functions.  One  is  the  personal  —  or  it  might  be 
called  the  spiritual  —  phase.  It  is  that  function  of 
labor  that  represents  the  worker  giving  his  life's 
vigor  to  the  daily  task.  When  a  man  gives  a  part  of 
his  life  to  a  thing  he  is  not  selling  a  commodity.  It 
is  a  repellent  idea  to  think  of  a  man  selling  his  very 
self.  In  this  respect  labor  is  not  a  commodity. 
But  there  is  the  other  function  of  labor  —  the  tangible 
element  with  an  exchange  value.  Labor  is  readily 
translated  into  product.  Labor  is  the  one  and  only 
thing  that  gives  iron  any  value.  If  no  labor  was 
required  to  produce  iron  —  if  it  could  be  snatched  out 
of  the  air  without  effort  —  iron  would  have  no  value. 
Iron  is  bought  and  sold.  It  is  a  commodity.  It  is 
the  labor  that  is  bought  and  sold,  for  the  iron  without 
the  labor  is  valueless. 

When  a  man  "lays  off"  because  he  has  enough 
money  to  tide  him  over  an  idle  period,  he  is  playing 
his  money  —  capital  —  against  his  labor.  He  is  con- 
ceding that  his  money  takes  the  place  of  his  labor. 
He  is  admitting  that  his  money  is  equivalent  to  his 
labor.  This  is  not  a  sentimentally  attractive  state- 
ment of  the  case,  but  it  is  true.  In  considering  the 
spiritual  value  of  labor  we  must  also  remember  that 


COLLECTIVE  BARGAINING 

house  rent,  fuel,  food,  and  other  things  may  some- 
times also  partake  of  the  semisacred  characteristics, 
for  they  may  mean  the  difference  between  life  and 
death.  They  may  represent  life,  as  does  labor.  And  ,.< 
they  have  a  cash  value.  They  are  commodities,  in  *~ 
one  sense.  The  Kansas  law  seeks  to  safeguard  all  of 
the  sacred  rights  of  men,  whether  they  be  the  rights 
to  fuel,  food,  clothing,  or  the  rights  to  fair  living  and 
working  conditions.  It  would  keep  a  sane  balance 
between  the  sacred  human  rights  and  cash  or  prop- 
erty rights. 

In  considering  the  subject  of  collective  bargaining, 
therefore,  it  is  well  to  keep  the  two  functions  of  labor 
in  mind.  At  best,  the  subject  is  a  complex  one,  and 
there  is  not  a  good  field  for  cocksure  pronouncements. 

For  the  purposes  of  this  thesis,  however,  it  is 
sufficient  to  say  that  there  is  good  sense  and  reason- 
ableness in  the  custom  of  a  labor  organization  or 
group  saying  to  the  employer,  "Our  services  are 
worth  so  much  per  day;  we  will  agree  to  work  upon 
such  and  such  terms  for  a  period  of  one  year;  we  will 
contract  to  perform  our  part  of  the  bargain  and  you 
will  contract  to  fulfill  your  part."  This  is  good  busi- 
ness sense  and  practice.  It  simplifies  employment, 
insures  a  larger  degree  of  fairness  to  the  whole  group, 
and  makes  for  efficient  transactions.  It  tends  to 
prevent  exploitation  of  labor  in  slack  periods  and  it 
tends  to  insure  a  constant  output. 

Collective  bargaining  is  a  complex  process.  It 
deals  with  the  sacred  element  of  labor,  and  the  sa- 


THE  PARTY  OF  THE  THIRD  PART 

credness  of  contract  should  be  observed  likewise.  A 
careful  distinction  should  be  made  between  the  cash 
value  of  labor  and  the  spiritual  value.  Each  value 
should  be  kept  distinct  and  in  its  proper  place  so 
that  the  spiritual  value  may  be  kept  intact. 

The  Kansas  law  recognizes  and  encourages  collec- 
tive bargaining — not  to  promote  the  idea  of  bartering 
labor,  but  to  preserve  the  best  benefits  of  organiza- 
tion. It  seeks  to  make  the  labor  leaders  responsible 
for  the  contracts  they  sign,  and  when  contracts  are 
faithfully  fulfilled  by  employer  and  employee  they 
attain  a  higher  degree  of  respectability  and  prestige. 
The  Kansas  law  does  not  contemplate  or  threaten 
any  weakening  of  unions  or  any  vitiation  of  labor's 
spiritual  values.  It  contemplates  strengthening 
them  by  giving  them  useful  and  humanitarian  func- 
tions. It  seeks  to  make  unions  more  valuable  to 
themselves  as  well  as  to  the  public. 


XVIII 

SOME    LEGAL   PHASES    OF   THE    INDUSTRIAL   COURT 

IN  1548,  under  Edward  VI  and  Elizabeth,  a  law 
was  passed  restricting  the  activities  of  laborers. 
A  part  of  it  is  reproduced  herewith: 

Artyficers,  handycrafte  men  and  laborers,  have  made  con- 
federacyes  and  promyses  and  have  sworne  mutuall  othes,  not 
onlye  that  they  shoulde  not  meddle  one  withe  an  others  worke, 
and  performe  and  fynishe  that  an  other  hathe  begone,  but  also 
to  constitute  and  appoynt  howe  muche  worke  they  shoulde  doe 
in  a  daye  and  what  howers  and  tymes  they  shall  work,  con- 
trarie  to  the  Lawes  and  Statutes  of  this  Realme.  Everie  person 
so  conspiring,  covenantinge,  swearing  or  offendinge  .  .  .  shall 
forfeyt  for  the  firste  offence  tenne  pounds  ...  or  twenty  dayes 
imprisonment. 

Repetitions  of  offenses  were  punished  with  great 
severity. 

It  was  with  such  crude  and  absurd  efforts  that  the 
Anglo-Saxon  governments  tried  to  cope  with  certain 
abuses  which  they  felt  but  could  not  correctly  gauge. 

It  will  always  be  the  task  of  labor  lawmakers  to 
convince  the  workers  that  no  such  absurd  or  unjust 
restrictions  are  to  be  made,  but,  on  the  other  hand, 
positive  means  will  be  provided  to  encourage  legiti- 
mate unionization  and  make  easier  the  ways  of  secur- 
ing better  conditions  for  labor. 


254  THE  PARTY  OF  THE  THIRD  PART 

Civilization  has  profited  by  the  "horrible  exam- 
ple" of  the  early  efforts.  Just  government  will  avoid 
the  palpable  injustices  of  the  old  tyrannical  laws. 

The  beginnings  of  industrial  law,  crude  and  un- 
just as  they  are,  are  an  indication,  however,  that 
civilized  society  has  always  felt  a  vague,  instinctive 
n«ed  for  extending  its  judicial  arm  over  industrial 
as  well  as  criminal  and  civil  affairs.  That  need  is 
intensified  with  the  prevalent  centralization  of  power. 

"The  earliest  notion  of  law  is  not  an  enunciation 
of  a  principle,  but  a  judgment  in  a  peculiar  case," 
says  Theodore  W.  Dwight  of  Columbia  University. 
"The  only  authoritative  statement  of  right  and 
wrong  is  a  judicial  sentence  rendered  after  the  facts 
have  occurred." 

There  is  good  reason,  therefore,  why  students  of 
labor  problems  should  not  be  too  closely  bound  by 
precedents.  They  should  not  compare  modern  in- 
dustrial legislation  with  that  of  former  centuries. 
Modern  conditions  have  created  a  new  set  of  facts, 
and  we  must  judge  the  propriety  of  law  upon  the 
facts  and  not  wholly  upon  theories.  They  should 
not  jump  at  the  conclusion  that  modern  industrial 
courts  are  aimed  at  labor  simply  because  in  former 
centuries  much  of  the  industrial  law  was  oppressive 
to  labor. 

It  is  well  to  bear  in  mind  always  that  law  is  a  pro- 
gressive, and  not  a  static  thing. 

The  supreme  courts  are  making  decisions  in  this 
decade  that  they  would  not  have  made  fifty  years 


LEGAL  PHASES  OF  INDUSTRIAL  COURT  255 

ago.  They  are  properly  alive  to  the  growing  require- 
ments of  a  growing  civilization. 

The  standpat  mind  is  always  ready  to  protest, 
"Oh,  but  it  has  not  been  done — it  cannot  be  done." 
The  progressive  mind  is  always  ready  to  inquire  into 
the  new  facts  that  are  constantly  arising,  adjusting 
principles  with  facts  until  a  workable  program  is 
evolved. 

It  should  not  be  inferred  that  the  Kansas  Industrial 
Court  is  founded  entirely  upon  new  facts  and  princi- 
ples, however.  There  are  ample  precedents.  There 
are  plenty  of  decisions  of  past  decades  which  go  to 
show  that  the  industrial  code  is  an  inevitable  fruit  of 
this  epoch.  Both  state  and  Federal  courts  have 
handed  down  decisions  that  support  the  fundamental 
theory  of  the  Kansas  court. 

One  of  the  most  interesting  cases  is  that  of  People 
vs.  Fisher,  decided  in  1835  by  the  court  of  last  resort 
in  the  state  of  New  York,  holding  a  conspiracy  of 
journeymen  workmen  of  any  trade  or  handicraft  to 
raise  their  wages  by  entering  into  combinations  to 
coerce  journeymen  and  master  workmen  employed 
in  the  same  trade  or  business,  for  the  purpose  of  regu- 
lating the  price  of  labor  and  carrying  such  rules  into 
effect  by  overt  acts,  is  punishable  as  a  misdemeanor; 
and  it  was  accordingly  held  that  when  journeymen 
shoemakers  conspired  together  and  fixed  the  price  of 
making  coarse  boots,  and  entered  into  a  combination 
that  if  a  journeyman  shoemaker  should  make  such 
boots  below  the  rate  established  he  should  pay  the 


256  THE  PARTY  OF  THE  THIRD  PART 

penalty;  and  if  any  master  shoemaker  employed  a 
journeyman  who  had  violated  their  rules,  they  would 
refuse  to  work  for  him  and  would  quit  his  employ- 
ment, and  carried  such  combination  into  effect  by 
leaving  the  employment  of  a  master  workman  in 
whose  service  was  a  journeyman  who  had  violated 
their  rules,  and  thus  COMPELLED  THE  MASTER  SHOE- 
MAKER TO  DISCHARGE  SUCH  JOURNEYMAN  FROM  HIS 

EMPLOY — that  the  parties  thus  conspiring  were  guilty 
of  a  misdemeanor  and  punishable  accordingly. 
In  the  course  of  the  opinion  the  court  said : 

Nor  is  a  mechanic  obliged  by  law  to  work  for  any  particular 
price.  He  may  say  that  he  will  not  make  coarse  boots  for  less 
than  one  dollar  per  pair*  but  he  has  no  right  to  say  that  no  other 
mechanic  shall  make  them  for  less.  .  .  .  If  one  individual  does  not 
possess  such  right  over  the  conduct  of  another,  no  number  of 
individuals  can  possess  such  a  right.  In  the  present  case  an  in- 
dustrious man  was  driven  out  of  employment  by  the  unlawful 
measures  pursued  by  the  defendants,  and  an  injury  was  done 
to  the  community  by  diminishing  the  quantity  of  productive 
labor  and  of  internal  trade.  ...  If  the  defendants  cannot  make 
coarse  boots  for  less  than  one  dollar  per  pair,  let  them  refuse  to 
do  so;  but  let  them  not  directly,  or  indirectly,  undertake  to  say 
that  others  shall  not  do  work  for  a  less  price. . . .  The  interference 
of  the  defendants  was  unlawful.  Its  tendency  is  not  only  to 
individual  oppression,  but  to  public  inconvenience  and  em- 
barrassment. 

The  foregoing  opinion  of  the  early  New  York  court 
is  a  correct  statement  of  the  common  law  as  it  has 
always  existed  both  in  England  and  in  the  United 
States.  In  most  statutory  enactments  for  the  pun- 
ishment of  combinations  in  restraint  of  trade  in  this 
country,  in  order  to  avoid  the  application  of  this 


LEGAL  PHASES  OF  INDUSTRIAL  COURT  257 

principle,  labor  and  farmer  organizations  have  been 
generally  excepted  from  the  operation  of  the  statutes, 
while  the  restraint  of  trade  by  some  classes  of  citizens 
have  been  made  criminal  and  severely  punished, 
and  others  have  been  exempted. 

The  case  in  the  United  States  District  Court  for 
the  District  of  Arkansas,  Hitchman  Coal  and  Coke 
Co.  vs.  Mitchell,  245  U.  S.,  229,  has  a  certain  angle 
which  touches  the  Kansas  theory. 

The  United  Mine  Workers  had  compelled  the  em- 
ployees of  the  coal  company  to  join  the  union  with- 
out the  knowledge  of  the  employer,  and  when  20  or 
30  per  cent  had  joined  the  union,  a  strike  was  called 
for  the  purpose  of  forcing  the  mining  company  to 
maintain  a  closed  shop. 

In  deciding  this  case,  the  United  States  court  said: 

The  right  of  workingmen  to  organize  for  legitimate  business 
and  to  enlarge  their  organization  by  inviting  other  workingmen 
to  join  is  not  so  absolute  that  it  may  be  exercised  under  any 
circumstances  and  without  any  qualifications,  but  it  must  always 
be  exercised  with  reasonable  regard  for  the  conflicting  rights  of 
others. 

The  decision  held  the  United  Mine  Workers  union 
to  be  an  illegal  organization,  and  the  Supreme  Court 
of  the  United  States  upheld  the  decision.  In  this 
case  the  plaintiff  received  a  judgment  of  $600,000. 

One  of  the  interesting  cases  to  read  in  connection 
with  the  theory  of  the  Kansas  law  is  that  of  the 
German  Alliance  Insurance  Co.  vs.  Lewis,  233  Su- 
preme Court  of  the  U.  S.,  page  389  (the  Kansas  fire- 

17 


258 

insurance  rating  case).     There  the  Supreme  Court 
says: 

The  cases  need  no  explanatory  or  fortifying  comment.  They 
demonstrate  that  a  business,  by  circumstances  and  its  nature, 
may  rise  from  private  to  be  of  public  concern,  and  be  subject, 
in  consequence,  to  governmental  regulation.  And  they  demon- 
strate, to  apply  the  language  of  Judge  Andrews  in  the  Budd  case 
(117  N.  Y.,  27,  5  L.  R.  A.,  599,  15  Am.  St.  Rep.,  460,  22  N.  E., 
670),  that  the  attempts  made  to  place  the  right  of  public  regu- 
lation in  the  cases  in  which  it  has  been  exerted,  and  of  which 
,we  have  given  examples,  upon  the  ground  of  special  privilege 
conferred  by  the  public  on  those  affected,  cannot  be  supported. 
"The  underlying  principle  is  that  business  of  certain  kinds  hold 
such  a  peculiar  relation  to  the  public  interest  that  there  is  super- 
induced upon  it  the  right  of  public  regulation."  Is  the  business 
of  insurance  within  the  principle?  It  would  be  a  bold  thing  to 
aay  that  the  principle  is  fixed,  inelastic,  in  the  precedents  of  the 
past,  and  cannot  be  applied,  though  modern  economic  conditions 
may  make  necessary  or  beneficial  its  application.  In  other  words, 
to  say  that  government  possessed  at  one  time  a  greater  power 
to  recognize  the  public  interest  in  a  business  and  its  regulation 
to  promote  the  general  welfare  than  the  government  possesses 
(to-day. 

In  the  case  of  Gompers  vs.  The  Buck  Stove  and 
Range  Co.,  221  U.  S.,  439,  the  Supreme  Court  said: 

Society  itself  is  an  organization,  and  does  not  object  to  organi- 
zations for  social,  religious,  business,  and  all  legal  purposes. 
The  law,  therefore,  recognizes  the  right  of  workingmen  to  unite 
and  to  invite  others  to  join  their  ranks,  thereby  making  available 
the  strength,  influence,  and  power  that  come  from  such  associa- 
tion. By  virtue  of  this  right,  powerful  labor  unions  have  been 
organized. 

But  the  very  fact  that  it  is  lawful  to  form  these  bodies,  with 
multitudes  of  members,  means  that  they  have  thereby  acquired 
a  vast  power  in  the  presence  of  which  the  individual  may  be 
helpless.  This  power,  when  unlawfully  used  against  one,  cannot 


LEGAL  PHASES  OF  INDUSTRIAL  COURT  259 

be  met,  except  by  his  purchasing  peace  at  the  cost  of  submitting 
to  terms  which  involve  the  sacrifice  of  rights  protected  by  the 
Constitution;  or  by  standing  on  such  rights  and  appealing  to 
the  preventive  powers  of  a  court  of  equity.  When  such  appeal 
is  made  it  is  the  duty  of  government  to  protect  the  one  against 
the  many,  as  well  as  the  many  against  the  one. 

The  Supreme  Court  of  the  United  States,  when 
confronted  with  the  effort  of  Debs  and  his  fellow 
conspirators  to  paralyze  railway  transportation  in 
1894, 


If  a  state,  with  its  recognized  powers  of  sovereignty,  is  im- 
potent to  obstruct  interstate  commerce,  can  it  be  that  any  mere 
voluntary  association  of  individuals  within  the  limits  of  that 
state  has  a  power  which  the  state  itself  does  not  possess? 

There  is  the  issue  stated  in  a  vivid  and  concise 
manner.  The  common  and  normal  process  of  quit- 
ting one's  job,  when  multiplied  by  a  thousand  or 
ten  thousand,  accompanied  by  coercive  methods  and 
accomplished  by  concerted  effort,  takes  on  different 
aspects  and  plainly  conflicts  with  the  police  powers 
of  the  state,  discussed  elsewhere  in  this  book. 

One  proof  of  the  fact  that  the  reaction  against 
vital  strikes  is  one  that  will  not  down  is  found  in 
Denmark,  where  laws  have  been  proposed  which  are 
far  more  severe  than  any  proposed  in  the  United 
States.  Radicals  who  resist  every  effort  in  the  line 
of  competent  industrial  tribunals  should  beware  lest 
they  hold  back  the  tide  of  opinion  too  long  and 
thereby  bring  about  by  their  own  stubbornness  such 
drastic  laws. 

The  bill  introduced  in  the  Folkething,  the  Rigs- 


26o  THE  PARTY  OF  THE  THIRD  PART 

dag's  lower  house,  according  to  European  correspond- 
ents, declared  all  strikes  illegal  that  are  destructive 
to  the  community.  Disfranchisement  and  suspension 
of  political  rights  form  the  penalty  for  infractions. 

The  Clayton  Act,  in  exempting  labor  unions  from 
the  provisions  regarding  combinations,  probably  did 
not  contemplate  conflict  with  the  general  theory  of 
police  powers,  for  it  attributed  to  organized  labor  a 
purely  negative  function — that  of  quitting  or  advis- 
ing to  quit  work.  That  negative  interpretation  of  the 
strike  cannot  long  bear  the  strain  of  modern  facts. 

The  section  of  the  Clayton  Act  touching  upon  this 
feature,  in  dealing  with  violation  of  law,  says  that 
no  prohibition  shall  be  made  upon  any  of  these  acts: 

Persons  singly  or  in  concert  from  terminating  any  relation  of 
employment,  or  from  ceasing  to  perform  any  work  or  labor,  or 
from  recommending,  advising,  or  persuading  others  by  peaceful 
means  so  to  do,  or  from  attending  at  any  place  where  any  such 
person  or  persons  may  lawfully  be,  for  the  purpose  of  peacefully 
obtaining  or  communicating  information,  or  from  peacefully 
persuading  any  person  to  work  or  to  abstain  from  working;  or 
from  ceasing  to  patronize  or  to  employ  any  party  to  such  dispute, 
or  from  recommending,  advising,  or  persuading  others  by  peace- 
ful means  so  to  do;  or  from  paying  or  giving  to,  or  withholding 
from,  any  person  engaged  in  such  dispute,  any  strike  benefits, 
or  moneys  or  things  of  value,  and  for  lawful  purposes;  or  from 
doing  any  act  or  thing  which  might  lawfully  be  done  in  the 
absence  of  such  dispute  by  any  party  thereto. 

Frank  P.  Walsh,  the  noted  labor  lawyer,  in  com- 
menting upon  the  Clayton  Act,  said  that  labor  unions 
were  exempted  from  its  provisions  because  "the  ac- 
tivities of  these  men  consisted  of  the  personal  service 


LEGAL  PHASES  OF  INDUSTRIAL  COURT  261 

which  they  rendered  to  the  industry,  and  that  any 
inhibition  on  their  right  to  quit  individually  or  in 
concert  was  an  assault  upon  the  Thirteenth  Amend- 
ment of  the  Constitution  of  the  United  States.'* 

The  defect  in  this  line  of  reasoning  has  been  pointed 
out  by  lawyers;  hence  it  may  not  seem  presumptu- 
ous to  recall  them  here. 

The  strike  of  these  days  cannot  be  dismissed  from 
the  mind  as  a  mere  withdrawal  of  service  by  an 
individual. 

Some  forms  of  the  strike  assume  a  very  positive 
aspect  and  cease  to  be  the  passive  or  negative  func- 
tion pictured  by  the  Clayton  Act.  Some  strikes 
assume  the  proportions  of  direct  action,  or  the  at- 
tempt to  alter  government  by  the  use  of  economic' 
pressure.  It  is  therefore  an  error  to  apply  the  Thir- 
teenth Amendment  in  every  case  to  the  strike. 

We  see  that,  although  the  beginnings  of  Anglo- 
Saxon  law  on  the  subject  of  labor  unionism  were 
clumsy  and  ridiculous  in  the  light  of  our  present-day 
civilization,  and  that  the  beginnings  were  wrong, 
there  is  a  germ  of  justice  in  some  of  the  efforts  that 
have  come  down  through  the  ages,  and  this  germ  has 
been  fertilized  by  recent  events.  Backed  by  legal 
and  moral  precedents,  the  efforts  of  lawmakers 
should  be  to  fabricate  wisely  and  moderately,  so  that 
labor  may  hold  its  dearly  bought  and  rightly  won 
privileges  of  better  living  and  brighter  prospects  of 
justice,  and  that  the  public  and  the  employers  may 
be  sure  of  life,  welfare,  and  lawful  rights  of  property. 


XIX 

THE    PUBLIC — WHAT   IS    IT? 

ROUGHLY  speaking,  one  tenth  of  the  total 
population  is  composed  of  the  actual  mem- 
bers of  organized  labor  and  organized  capi- 
tal. For  the  sake  of  convenience  it  may  therefore 
be  said  that  nine  tenths  of  the  population  represent 
the  public.  In  reality,  of  course,  the  public  repre- 
sents 100  per  cent  of  the  population. 

In  dealing  with  any  given  industrial  dispute,  it  is 
patent  that  when  we  speak  of  the  public  we  mean 
that  part  of  the  population  not  directly  concerned 
in  that  particular  dispute. 

It  is  upon  this  definition  that  we  must  rest  discus- 
sions of  the  relative  points  of  the  "eternal  triangle." 
If  there  is  a  coal  strike  the  public  includes  everybody 
but  the  miners'  union  and  the  operators.  It  includes 
all  the  other  craft  unions.  It  may  be  that  the  other 
crafts  sympathize  with  the  miners,  but  that  is  im- 
material to  the  argument,  for  a  part  of  the  unorganized 
public  may  also  sympathize  with  the  miners.  The 
other  crafts  have  to  buy  coal.  They  have  to  pay 
an  increased  price  because  of  lockouts,  striking,  or 


THE  PUBLIC— WHAT  IS  IT?         263 

profiteering  or  other  abnormal  condition  brought  on 
by  workers  or  employers. 

On  the  rational  assumption  that  every  individual 
is  trying  to  buy  his  product  as  cheaply  as  possible, 
and  that  he  has  a  righteous  grievance  against  any 
person  or  persons  who  cause  him  to  pay  more,  the 
other  craft  unions  are  actually  opposed  to  the  action 
of  the  coal  miners'  union  when  it  is  shown  that  the 
action  of  the  union  has  caused  an  increase  in  the 
price  of  coal,  just  as  they  are  actually  opposed  to 
the  mine  operators  when  it  is  shown  that  the  increase 
is  due  to  the  greed  of  employing  capital.  This  is 
merely  a  cold,  mathematical  fact,  regardless  of  union 
solidarity  or  personal  predilections. 

The  public  is  not  a  heartless,  ruthless  mass  of 
humanity,  intent  upon  grinding  out  the  life  of  labor 
or  oppressing  capital.  It  could  not  be  if  it  wanted 
to.  The  public  depends  upon  labor  and  capital, 
not  only  because  labor  and  capital  are  a  part  of 
the  public,  but  because  labor  and  capital,  function- 
ing normally,  keep  the  body  politic  in  a  healthy 
condition. 

It  is  to  the  interest  of  the  public  that  labor  and 
capital  be  treated  fairly,  hence  the  setting  up  of  in- 
dustrial courts  need  not  alarm  anyone.  The  public 
is  not  intent  merely  upon  defending  itself  from  op- 
pression and  suffering.  It  is  intent  also  upon  keeping 
the  workers  and  employers  at  the  highest  efficiency 
and  in  the  most  prosperous  and  satisfied  state. 
Hence,  when  we  say  that  industrial  courts  are  in  the 


264  THE  PARTY  OF  THE  THIRD  PART 

interest  of  the  public,  we  mean  not  only  the  public 
that  is  injured  by  an  industrial  dispute,  but  the 
whole  public.  The  court  thus  becomes  an  instru- 
ment of  all  the  people,  by  all  the  people,  and  for  all 
the  people. 


XX 

SLOWING   DOWN    PRODUCTION 

THE  1920  convention  of  the  American  Federa- 
tion of  Labor  went  on  record  as  favoring  the 
six-hour  day,  and  the  ground  for  this  utter- 
ance was  not  that  it  was  needed  to  conserve  the 
health  and  well-being  of  the  worker,  but  that  it 
would  provide  a  large  number  of  jobs,  since  more 
men  would  be  required  to  produce  the  necessary 
product. 

We  will  not  stop  to  argue  whether  a  man  should 
work  less  than  eight  hours  a  day,  in  the  natural  order 
of  things,  for  that  would  be  immaterial.  Since  it  is 
announced  that  the  purpose  is  virtually  to  reduce  the 
per-capita  production,  of  course  the  principle  will  not 
draw  the  line  at  a  six-hour  day,  but  will  lend  itself 
equally  well  to  a  four-hour  or  two-hour  day,  and  so 
on  ad  libitum. 

If  the  argument  for  a  six-hour  day  is  based  upon 
the  desirability  of  reducing  per-capita  production, 
and  thereby  providing  more  jobs  at  the  same  pay, 
the  same  argument  will  apply  to  still  shorter  days, 
with  equal  force.  There  is  no  limit. 

And  yet  in  the  final  analysis  there  is  a  limit  which 


266  THE  PARTY  OF  THE  THIRD  PART 

no  man  may  arbitrarily  set,  and  yet  which  is  as  in- 
exorable as  the  law  of  gravitation.  That  limit  is  set 
by  what  is  sometimes  called  the  "law  of  diminishing 
returns."  Even  though  the  exact  point  of  its  appli- 
cation cannot  be  determined,  it  must  be  reckoned 
with  as  a  stern  economic  fact. 

Elbert  Hubbard  called  attention  to  this  law  in  a 
dissertation  upon  unionism  as  applied  to  the  closed- 
shop  principle.  It  is  well  enough  to  borrow  the  illus- 
tration he  used. 

A  locomotive  may  be  made  to  travel  fifty  miles 
an  hour  upon  a  certain  number  of  tons  of  coal  per 
mile.  The  crude  reasoner  would  say  that  doubling 
the  amount  of  coal  per  mile  would  cause  the  loco- 
motive to  travel  one  hundred  miles  an  hour.  But 
the  railroad  man  knows  better.  The  engine  would 
probably  travel  sixty  miles  an  hour,  the  fire  box  and 
flues  would  likely  be  damaged  and  the  roadbed  dis- 
turbed. The  passengers  would  be  endangered  and 
disaster  would  be  invited.  Fifty  miles  would  be  the 
pivotal  point  of  efficiency.  Beyond  that  point  the 
returns  for  the  amount  of  coal  consumed  would  be 
diminished. 

Unionization  has  done  great  things  for  labor.  It 
has  brought  about  shorter  hours,  better  working 
conditions,  and  better  pay.  It  has  brought  labor  a 
more  complete  reward  for  its  true  worth.  Organized 
labor,  by  getting  better  laws,  has  quieted  the  fears 
of  those  employers  who  opposed  those  laws.  Em- 
ployers have  come  to  like  the  laws,  regulations,  and 


SLOWING  DOWN  PRODUCTION       167 

customs  because  they  have  found  that  it  paid  to 
treat  workers  well. 

Unionization  has  flourished.  Workers  found  that 
it  paid  to  unionize.  This  fact  has  led  some  of  them 
to  believe  that  if  a  ton  a  mile  is  good,  two  tons  a  mile 
will  be  twice  as  good.  Some  of  them  believe  that  if 
an  eight-hour  day  is  good  a  four-hour  day  is  twice 
as  good.  They  do  not  reckon  with  the  law  of  di- 
minishing returns.  There  is  a  pivotal  point  some- 
where which  they  may  not  pass  without  endangering 
not  only  the  interest  of  society  as  a  whole,  but  their 
own  as  well. 

Who  pays  for  the  coal  strike? 

The  union  bricklayer  helps  pay  for  it.  The  union 
steel  worker  helps  pay  for  it.  Everybody  helps  pay 
for  it.  Every  hour  of  idleness  means  a  loss  to  every 
member  of  society.  The  coal  miner  helps  pay  for  it 
himself.  The  strike  means  higher  coal.  It  means 
higher  transportation.  It  means  higher  flour,  meat, 
potatoes,  clothing.  The  miner  sooner  or  later  feels 
the  pressure.  The  law  of  diminishing  returns  is 
always  at  work.  Idleness  means  loss  of  produc- 
tion and  loss  of  production  means  poverty  and 
hard  times. 

But,  it  is  argued,  overproduction  may  also  cause 
poverty  and  hard  times.  There  may  be  a  grain  of 
truth  in  this,  but  the  statement  is  not  accurate  when 
adjusted  to  the  facts  of  history.  It  would  be  more 
truthful  to  say  that  unequal  distribution,  inefficient 
production,  exploitation  of  labor,  and  defective 


268  THE  PARTY  OF  THE  THIRD  PART 

finance  cause  poverty  and  hard  times.  It  would  be 
unprofitable,  however,  to  venture  far  into  a  discus- 
sion of  this  phase  of  the  situation  as  far  as  the  pur- 
pose of  this  book  is  concerned.  The  great  fact  that 
looms  out  of  the  present  industrial  situation  is  that 
there  is  a  vast  amount  of  friction  and  lost  motion  in 
the  industrial  machine.  If  there  is  overproduction 
the  fault  should  be  remedied,  not  by  the  crude  and 
unscientific  resort  to  the  strike,  which  causes  ex- 
tremes of  nonproduction  at  critical  points,  but  by 
well-ordered  and  equable  reductions  of  working 
hours,  basing  the  reduction  upon  the  statistics  of 
the  situation.  The  only  comprehensive  and  ade- 
quate method  of  bringing  about  such  a  stabiliza- 
tion is  by  resort  to  the  lubricant  influence  of  indus- 
trial courts. 

The  objection  has  been  made  that  the  Industrial 
Court  will  work  well  in  times  of  an  upward  tendency 
of  wages,  but  that  in  hard  times,  when  wages 
tend  downward,  the  court  cannot  function  with- 
out reducing  wages,  with  consequent  discontent 
and  friction. 

This  point  is  not  well  taken. 

The  Industrial  Court  will  prevent  capital  from 
taking  advantage  of  a  surplus  of  labor.  It  is  a  his- 
torical fact  that  there  is  little  or  no  labor  agitation 
in  times  of  depression.  When  an  employer  can  go 
to  a  soup  house  and  take  his  pick  of  laborers,  strikes 
are  few  and  far  between.  What  recourse  is  there  for 
the  laborer  when  men  are  more  plentiful  than  jobs  ? 


SLOWING  DOWN  PRODUCTION       269 

What  protection  has  he  against  the  rapacity  of  the 
employer  who  has  the  power  to  cut  and  cut  and  cut 
wages  ? 

Employing  capital  has  always  taken  advantage  of 
labor  in  times  of  depression.  It  has  not  borne  its 
share  of  the  burden  of  depression. 

The  Industrial  Court,  in  such  times,  will  be  the 
salvation  of  the  worker.  It  will  see  to  it  that  the 
employer  does  not  take  advantage  of  the  dull  season 
and  put  a  bigger  margin  between  his  labor  cost  and 
his  sales'  receipts  than  he  observed  in  more  prosper- 
ous times.  The  court  will  be  a  stabilizer,  placing  a 
restraining  hand  on  unjustified  wage  decreases.  In- 
stead of  breaking  down  in  hard  times,  the  Industrial 
Court,  on  the  contrary,  will  then  show  its  greatest 
value  as  a  guarantor  of  fair  play. 

Any  rapid  trend  of  wages,  whether  upward  or 
downward,  has  a  cumulative  effect.  The  rapid  up- 
ward trend  is  not  wholly  good,  even  from  the  worker's 
standpoint,  for  it  ultimately  increases  the  cost  of  all 
production  by  setting  up  spreading  circles  of  dis- 
turbance. The  downward  trend  in  any  given  indus- 
try sets  up  a  different  circle  of  disturbance  that 
spreads  to  other  industries  and  finally  reacts  on  itself, 
probably  causing  subsequent  reductions.  It  follows, 
then,  that  stabilizing  of  wages  and  commodity  prices 
is  desirable  to  the  worker.  It  is  desirable  to  the 
manufacturer,  for  it  enables  him  safely  to  make  his 
plans  for  the  future,  thus  enhancing  efficiency.  It 
is  desirable  to  the  public,  for  it  prevents  hoarding, 


270  THE  PARTY  OF  THE  THIRD  PART 

slow  buying,  feverish  and  excessive  buying,  and  other 
features  of  unhealthy  commerce. 

New  adjustments  in  wages  and  commodity  prices 
will  always  become  necessary  from  time  to  time,  but 
the  speculative  element  should  be  reduced  to  a  mini- 
mum and  the  new  adjustments  should  be  upon  a 
scientific  and  humanitarian  basis.  Eventually  in- 
dustrial courts  will  indirectly  affect  commodity  prices 
as  well  as  wages,  and  they  will  appreciably  tend  to 
keep  the  ship  of  commerce  on  an  even  keel. 

In  a  perfectly  functioning  commercial  and  indus- 
trial society — imaginary,  of  course — there  would  be 
no  strikes  or  lockouts.  The  spare  time  not  needed 
for  production  would  go  for  recreation,  every  worker 
to  get  his  rightful  share.  Gradually  it  would  be 
found  possible  to  readjust  conditions  of  labor  so  as 
to  give  each  worker  the  maximum  product  reward 
consistent  with  the  value  of  his  services.  There 
would  be  no  excessive  profit  taking  and  no  exploiting 
of  labor  because  of  unemployment.  The  leisure  and 
good  pay  would  not  go  merely  to  those  who  were 
strong  enough  to  enforce  their  will,  but  also  to  the 
weak  members  without  organization. 

How  can  such  an  ideal  condition  be  approached 
even  halfway  ?  Not  by  pulling  and  hauling,  striking, 
cutting  down  production  below  demand,  but  by  a 
wise  and  tactful  functioning  of  government.  Such 
functioning  will  not  be  by  government  ownership  or 
operation,  but  by  conciliatory  supervision  and  au- 
thority to  settle  disputes.  The  problem  will  be  to 


SLOWING  DOWN  PRODUCTION       271 

safeguard  the  American  principle  of  individual  in- 
itiative and  still  give  the  people  the  protection  from 
industrial  warfare  to  which  they  are  entitled. 

"Economically  speaking,  society  thrives  or  lan- 
guishes according  as  production  is  abundant  or 
scarce,"  says  Ralph  H.  Hess,  the  economist.  Vary- 
ing degrees  of  efficiency  in  production  or  distribution 
depend  upon  the  state  of  civilization  or  removal  from 
frontier  life. 

In  discussing  the  familar  theme  that  "labor  pro- 
duces all  wealth,"  Thomas  N.  Carver  says:  "The 
kind  of  labor  that  is  unemployed  does  not  produce 
all  wealth.  It  must  be  combined  with  other  kinds  of 
labor  in  order  to  be  productive."  Idleness  is  therefore 
an  economic  waste,  and  the  fact  that  idleness,  in  the 
form  of  a  strike,  has  been  used  to  improve  the  work- 
ers' condition  is  no  excuse  for  continuing  it  as  an 
economic  expedient  when  a  better  substitute  can  be 
provided. 

After  all  is  said  of  the  relative  importance  of  vari- 
ous parts  of  the  industrial  machine,  the  fact  remains 
that  service  is  the  only  true  standard  of  valuation, 
and  as  service  is  diminished  the  value  of  the  given 
economic  factor  decreases. 

H.  L.  Gantt,  in  his  admirable  brochure,  Organizing 
for  Work,  says,  in  speaking  of  profits  versus  service: 

It  is  this  conflict  of  ideals  which  is  the  source  of  the  confusion 
into  which  the  world  now  seems  to  be  driving  headlong.  The 
community  needs  service  first,  regardless  of  who  gets  the  profits, 
because  its  life  depends  upon  the  service  it  gets.  The  business 


272  THE  PARTY  OF  THE  THIRD  PART 

man  says  profits  are  more  important  to  him  than  the  service  he 
renders;  that  the  wheels  of  business  shall  not  turn,  whether  the 
community  needs  the  service  or  not,  unless  he  can  have  his 
measure  of  profit.  He  has  forgotten  that  his  business  system 
had  its  foundation  in  service,  and  as  far  as  the  community  is 
concerned  has  no  reason  for  existence  except  the  service  it  can 
render.  A  clash  between  these  two  ideals  will  ultimately  bring 
a  deadlock  between  the  business  system  and  the  community. 
The  laissfz  faire,  in  which  we  all  seem  to  have  so  much  faith, 
does  not  promise  any  other  result,  for  there  is  no  doubt  that  the 
industrial  and  social  unrest  is  distinctly  on  the  increase  through- 
out the  country. 

I  say,  therefore,  we  have  come  to  the  parting  of  the  ways,  for 
we  must  not  drift  on  indefinitely  toward  an  economic  catastrophe 
such  as  Europe  exhibits  to  us.  We  probably  have  abundant 
time  to  revise  our  methods  and  stave  off  such  a  catastrophe,  if 
those  in  control  of  industry  will  recognize  the  seriousness  of  the 
situation  and  promptly  present  a  positive  program  which  defi- 
nitely recognizes  the  responsibility  of  the  industrial  and  business 
system  to  render  such  service  as  the  community  needs.  The 
extreme  radicals  have  always  had  a  clear  vision  of  the  desirability 
of  accomplishing  this  end,  but  they  have  always  fallen  short  in 
the  production  of  a  mechanism  that  would  enable  them  to 
materialize  their  vision. 

.  .  .  We  all  realize  that  any  reward  or  profit  that  business  arbi- 
trarily takes  over  and  above  that  to  which  it  is  justly  entitled 
for  service  rendered,  is  just  as  much  the  exercise  of  autocratic 
power  and  a  menace  to  the  industrial  peace  of  the  world  as  the 
autocratic  military  power  of  the  Kaiser  was  a  menace  to  inter- 
national peace.  This  applies  to  Bolshevists  as  well  as  to 
bankers. 


The  extreme  radicals  have  had  the  vision  of  a 
gradual  strangulation  of  the  employing  capitalists 
and  a  subsequent  seizure  of  all  means  of  production, 
with  the  abolition  of  the  wage  system  and  nationali- 
zation of  all  industry.  Their  policy,  therefore,  has 


SLOWING  DOWN  PRODUCTION       273 

been  that  of  sabotage,  or  progressive  slowing-down 
tactics.  Through  the  maze  of  industrial  conflicts, 
therefore,  we  see  two  functions  of  the  strike.  One  is 
the  traditional  function  of  attempting  to  secure  bet- 
ter wages  and  working  conditions.  The  other  is  the 
attempt  to  enact  a  complete  revolution,  political  as 
well  as  industrial. 

In  both  kinds  of  strikes,  of  course,  service  suffers, 
but  in  the  second  kind  the  purpose  is  to  destroy 
service  completely. 

The  progressive  shortening  of  hours  by  the  sheer 
power  of  certain  organized  groups,  for  the  purpose 
of  decreasing  production  and  creating  more  jobs,  is 
artificial  and  poisonous  to  the  body  politic.  It  runs 
contrary  to  the  principle  of  service,  and  illustrates 
the  law  of  diminishing  returns. 

The  introduction  of  such  artificial  proposals  is  one 
of  the  indications  that  we  are  at  the  parting  of  the 
ways,  indeed.  With  the  present-day  industrial-eco- 
nomic system  showing  symptoms  of  breakdown,  we 
must  either  let  the  state  be  submerged  in  an  economic 
system  that  is  becoming  too  unwieldy  and  inefficient 
to  give  the  community  loo-per-cent  service,  or  the 
state  must  exercise  its  indubitable  right  of  harmoniz- 
ing industry  with  government  and  of  making  indus- 
try serve  society  without  lost  motion  and  friction. 

The  first  great  Chicago  strike  cost  $80,000,000, 
according  to  Bradstreet's.  Other  strikes  have  been 
pyramided  on  the  country,  large  and  small,  until  the 

economic  loss  has  reached  into  the  billions  each  year. 
18 


274  THE  PARTY  OF  THE  THIRD  PART 

Slowing  down  production,  whether  by  the  strike  or 
sabotage,  is  crude  and  unscientific.  It  destroys  the 
equilibrium  of  society,  and  places  a  premium  upon 
sheer  power  at  the  expense  of  the  weaker  groups.  It 
is  wasteful  in  the  extreme.  It  must  be  supplanted  by 
a  better  way. 


XXI 

CONCLUSION 

COURTS  properly  are  facilitators  of  industry, 
but  not  administrators.    They  order  corpora- 
tions to  lower  or  raise   rates   or   do  other 
things;  they  do  not  take  over  corporations  except  in 
temporary  emergencies.     Their  function  in  regard 
to  industry  is  supervisory,  not  paternalistically  ex- 
ecutive.   As  representatives  of  society  they  do  not 
buy  or  sell  or  make  contracts.    They  see  that  pur- 
chases or  sales  or  contracts  are  made  justly  and 
fairly. 

Chas.  P.  Steinmetz,  in  America  and  the  New  Epoch, 
says: 

For  the  small  individual  producer  of  bygone  days  there  was 
no  social  responsibility  or  duty,  but  his  business  was  his  private 
property,  to  carry  on  in  any  manner  he  liked,  subordinate  only 
to  the  national  laws.  But  when  the  industries  became  organized 
in  larger  and  larger  corporations,  and,  as  inevitably  must  be 
the  case  with  the  continuing  industrial  development  of  our 
nation,  industries  and  groups  of  industries  became  essentially 
controlled  by  corporations,  and  the  corporation  comprises  the 
joint  productive  activity  of  many  thousands  of  employees,  then 
a  social  responsibility,  and  with  it  a  social  duty,  arises  in  the 
corporation,  and  the  corporation  can  no  more  be  entirely  private 
property,  however  much  its  legal  owners  may  consider  it  such. 


276  THE  PARTY  OF  THE  THIRD  PART 

In  organized  society  there  can  be  n®  unrestricted  private  prop- 
erty in  anything  which  may  affect  or  influence  public  welfare 
and  public  interest.  This  is,  and  always  has  been,  the  law  of 
every  civilized  community.  Thus  with  the  growth  of  corpora- 
tions, a  new  relation  of  mutual  responsibility  with  the  public 
arises.  .  .  . 

Politically,  the  issue  was  first  raised  in  the  great  coal  strike 
when  the  President  of  the  United  States  forced  the  contending 
parties  to  arbitrate,  and  since  that  time  the  responsibility  of  the 
large  industrial  organizations  to  the  nation  has  been  universally 
established,  has  been  recognized  as  a  part  of  our  law. 

Of  course,  Mr.  Steinmetz's  bias  as  a  Socialist 
causes  him  to  incline  to  the  theory  of  government 
ownership.  The  Industrial  Court  theory  would  point 
in  the  other  direction — away  from  Socialism — by 
giving  to  society  and  its  courts  a  supervisory  rather 
than  an  administrative  power. 

The  premises  of  his  argument  are  entirely  valid, 
however. 

The  socialistic  concept  is  that  under  a  co-operative 
industrial  commonwealth  human  nature  somehow 
will  be  miraculously  changed  and  people  will  work 
together  for  the  good  of  the  common  cause.  Desir- 
able as  this  consummation  is,  dependence  cannot  be 
placed  on  it.  Instead,  we  must  hold  to  the  advan- 
tage of  private  initiative,  and  as  a  countervailing  in- 
fluence erect  adjudicatory  bodies  with  power  to  keep 
the  wheels  of  industry  well  oiled  and  efficient.  Those 
agencies  must  have  real  power,  backed  by  the 
majesty  of  the  law. 

Human  nature  will  not  be  changed  by  the  imposi- 
tion of  a  new  order.  It  can  only  be  changed  by 


CONCLUSION  277 

individual  regeneration.  But  human  nature  can  be 
dealt  with  in  a  new  way,  and  there  is  no  reason  for 
refusing  to  believe  that  industrial  conflicts  and  lost 
motion  can  be  eliminated  by  the  agencies  of  a  free 
individualistic  society  representing  the  whole  public. 
It  is  to  this  gigantic  task  of  the  facilitation  of  indus- 
try that  society  must  address  itself  in  the  coming 
era — meeting  the  new  difficulties  with  new  instru- 
ments. 

The  very  fact  that  such  agencies  exist  will  restrain 
potential  trouble  breeders,  just  as  the  presence  of 
police  officers  prevents  crime. 

The  Industrial  Court  question,  in  its  basic  aspects, 
is  not  merely  a  question  of  establishing  a  tribunal 
to  settle  strikes.  It  goes  much  farther  in  its  purview, 
and  embraces  a  wide  range  of  activities,  somewhat 
in  the  same  manner  that  the  civil  and  criminal  codes 
take  in  wide  ranges  of  human  functions. 

As  government  evolved  from  the  simple  autocracy 
with  one  branch — the  executive — to  the  democracy 
with  its  three  branches,  so  we  may  expect  the  judici- 
ary to  evolve  from  its  single  and  simple  function  of 
administering  criminal  law  to  the  threefold  duty  of 
adminisie-ing  criminal,  civil,  and  industrial  law. 
For  a  !(Mg  time  there  will  be  a  stubborn  refusal  to 
admit  the  third  and  logical  branch,  just  as  there  was 
opposition  to  other  forms  of  law,  but  eventually  the 
people  will  be  so  thoroughly  impressed  with  the  need 
for  the  industrial  code  that  the  barriers  of  prejudice 
and  unreasonable  precedent  will  be  swept  away. 


278  THE  PARTY  OF  THE  THIRD  PART 

When  the  industrial  code  is  recognized  as  a  fruit  of 
public  necessity,  the  fear  that  liberty  will  be  lost  will 
fade  away  in  the  knowledge  that  complex  civilization 
requires  a  readjustment  of  concepts  on  liberty.  Dr. 
Jeremiah  W.  Jenks,  in  his  book  Modern  Business, 
makes  an  excellent  point  when  he  says: 

Regulations,  even  close  restrictions,  may  enlarge  real  liberty. 
Liberty  is  not  mere  freedom  from  control  by  government  and 
laws.  It  is  freedom  from  control  of  all  kinds,  by  government, 
by  other  individuals,  by  natural  forces,  by  any  restraining 
influences.  Freedom,  as  government  should  promote  it  now- 
adays, is  rational  freedom  for  all;  and  regulations  may  enlarge 
liberty  by  giving  to  some  more  than  it  takes  from  others.  Traffic 
regulations,  and  the  restraining  hand  of  the  traffic  officer,  in- 
crease freedom  of  movement  through  city  streets.  Like  restric- 
tions increase  the  freedom  of  exit  from  burning  theaters  or 
factories. 

The  present  method  of  keeping  the  vast  machine 
of  production  running  is  a  helter-skelter  one.  No 
one  knows  where  the  machine  will  break  down  next. 
The  people  have  absolutely  no  guaranty  that  it  will 
continue  functioning.  Billions  of  dollars'  worth  of 
time  and  product  are  sacrificed  to  friction.  The  age 
of  individual  production  is  gone  forever,  and  with  its 
passing  there  comes  the  age  in  which  great  groups  of 
people  become  wholly  dependent  upon  the  smooth 
functioning  of  the  great  industrial  machine  that  has 
been  erected. 

The  various  groups,  with  their  various  tasks,  must 
be  directed  expeditiously  along  lines  of  least  resist- 
ance, just  as  large  crowds  are  directed  out  of  a 
theater. 


CONCLUSION  279 

The  measures  of  the  industrial  code,  which  may 
seem  at  first  to  be  onerous,  may  prove  to  be  actually 
a  relief. 

Workmen's  compensation  acts  were  once  dreaded 
by  business,  but  under  actual  practice  were  seen  to 
have  helped  business. 

The  installation  of  safety  appliances  ordered  by 
the  government  was  once  resisted.  Now  it  is  ac- 
cepted as  a  matter  of  course. 

And  so,  as  the  days  have  passed  by,  there  has  been 
a  gradual  readjustment  of  ideas,  so  that  we  find  that 
surrendering  some  things  we  once  thought  were  liber- 
ties really  pointed  the  way  to  new  wide  paths  of 
freedom.  There  is,  in  fact,  the  very  substantial 
beginning  of  an  industrial  code,  scattered  throughout 
the  general  statutes.  It  is  idle  to  say  that  we  will 
have  none  of  it — we  have  it  already  to  such  an  extent 
that  we  cannot  turn  back. 

The  Industrial  Court  of  Kansas  logically  and  nor- 
mally springs  from  flowing  and  developing  tendencies. 
It  does  not  spring  from  any  single  event,  such  as  the 
coal  strike,  though  that  strike  served  to  make  the 
need  more  vivid.  There  is  involved  not  only  the  need 
of  industrial  peace,  but  a  return  to  fundamental 
American  principles  which  form  the  very  framework 
of  our  government. 

This  return  must  be  accomplished,  not  by  reaction, 
not  by  any  measures  that  would  take  away  from 
labor  the  advantages  it  has  gained  through  hard 
struggle,  not  by  any  manifestation  of  oppression, 


28o  THE  PARTY  OF  THE  THIRD  TART 

but  by  a  constructive  and  forward-facing  program 
that  will  enhance  the  welfare  of  the  worker,  insure 
a  larger  measure  of  justice  to  him  as  well  as  to  other 
members  of  society,  stabilize  production,  and  protect 
the  public. 

Since  labor  comprises  a  great  part  of  the  public,  it  pays  a  cor- 
responding part  of  the  cost  of  strikes  [says  R.  J.  Caldwell  in  The 
Independent].  Labor  does  not  seem  to  understand  that  increased 
wages  can  only  be  paid  out  of  the  additional  output  of  wealth 
derived  from  increased  production.  Otherwise  the  cost  of  higher 
wages  comes  back  on  the  public  in  the  form  of  higher  prices,  and 
the  worker  loses  in  high  prices  what  he  gained  from  high  wages. 

This  is  logic  that  cannot  be  escaped.  If  the  worker 
shrugs  his  shoulder  at  this  and  says,  "Oh,  well,  I  am 
going  to  get  mine  and  let  the  rest  take  care  of  theirs," 
his  victory  is  only  an  empty  one.  The  spiral  must 
stop  somewhere. 

The  Kansas  Industrial  Court  [says  Mr.  Caldwell]  is  based  on 
the  theory,  derived  from  practical  experience,  that  the  disputants 
of  industry  cannot  amicably  settle  their  own  affairs,  but  have  to 
have  them  settled  for  them,  and  on  the  further  theory  that  the 
innocent  bystander  should  not  suffer  the  penalty  for  the  quarrels 
of  others.  The  conclusion  thus  reached  in  respect  to  industrial 
affairs  is  no  different  from  the  conclusion  reached  long  ago  by 
all  civilized  nations  in  civil  affairs,  which  resulted  in  our  civil 
and  criminal  courts. 

When  criminal  courts  were  first  established  in  the  West  there 
were  many  protests  of  the  usurpation  of  individual  rights  by  the 
courts,  but  few  to-day  would  abandon  them  after  having  lived 
under  their  jurisdiction,  and  it  is  difficult  to  see  why  results 
should  be  less  satisfactory  when  orderly  process  of  law  under  the 
administration  of  such  court  as  the  Kansas  Industrial  Relations 
Court  replaces  the  violence  of  strikes.  Under  the  Sullivan  Act 
it  is  not  permissible  in  New  York  for  anyone  to  carry  weapons 


CONCLUSION  281 

on  his  person,  and  yet  how  infinitesimal  is  the  damage  done 
from  the  use  of  weapons  in  the  hands  of  a  few  compared  with 
the  widespread  ruin  instituted  by  strikes.  If  one  hundredth  part 
of  the  effort  and  expense  incurred  by  labor  in  conducting  strikes 
or  negotiating  industrial  disputes  were  devoted  to  representing 
their  interests  before  an  industrial-relation  court,  the  results 
would  be  a  hundred  times  more  satisfactory  to  labor  itself  than 
the  present  crude,  antiquated,  and  altogether  intolerable  system 
of  strikes,  which  visit  their  first  cost  on  fellow  workers  and  their 
families. 

When  men  know  that  there  is  a  court  where  they 
may  carry  their  troubles,  litigation  is  decreased.  The 
honest  lawyer  advises  his  client  how  he  may  avoid 
breaking  the  law.  The  very  existence  of  courts  in 
themselves  is  a  deterrent  to  wrongdoing.  Already 
there  have  been  several  instances  where  teaching 
value  of  the  new  law  has  decreased  industrial  conflict. 

One  of  the  objections  to  the  Kansas  institution  is 
that  industrial  tribunals  of  various  kinds  have  been 
tried  before.  That  is  a  Bourbon  objection.  Those 
who  make  it  have  forgotten  nothing  and  they  have 
learned  nothing.  They  ignore  the  fact  that  the  in- 
dustrial conditions  of  to-day  cannot  be  intelligently 
compared  with  those  of  any  in  history.  Egypt, 
Rome,  Greece,  and  other  empires  had  their  civiliza- 
tions. In  some  respects  they  were  equal  or  possibly 
superior  to  that  of  to-day.  But  never  before  were 
the  economic  and  industrial  forces  of  the  civilized 
world  so  completely  organized.  Never  before  were 
specialization  and  the  division  of  tasks  so  highly  de- 
veloped. Never  before  were  there  such  inventions 
to  keep  organization  responsive  and  powerful — by 


282*  THE  PARTY  OF  THE  THIRD  PART 

means  of  the  electric  web  of  wire  and  wireless  inter- 
communication, fast  trains,  and  innumerable  other 
means  of  consolidation  and  centralization. 

The  present  era — unlike  that  of  any  other  in  his- 
tory— has  developed  huge  reservoirs  of  economic 
power — the  packers  in  one  group,  the  oil  industries 
in  another,  the  mining  industries  in  another,  the 
clothing  industries  in  another,  organized  labor  in 
another,  and  so  on. 

The  machine  process,  combined  with  intensive 
specialization,  has  dehumanized  industry  to  a  large 
extent,  thus  introducing  a  peculiarly  heartless  and 
unmoral  note.  Relations  must  be  rehumanized  by 
new  points  of  contact,  not  only  by  formal  adjudica- 
tion, but  by  the  formation  of  industrial  clearing 
houses  and  intermediaries. 

The  purpose  of  this  book,  therefore,  is  to  gather  a 
few  of  what  otherwise  might  seem  to  be  unrelated 
topics,  and  show  how  some  of  the  ponderous  and 
portentous  movements  of  the  times  argue  for  the 
cause  of  the  industrial  code  and  industrial  courts. 

In  order  to  systematize  and  classify  properly  the 
efforts  of  society  to  keep  its  industrial  machine  run- 
ning smoothly,  certain  basic  principles  must  be  laid 
down  for  a  foundation. 

One  of  these  principles  is  that  government  must  be 
political,  otherwise  it  ceases  to  be  democratic  or 
American.  It  must  not  be  subject  to  economic  pres- 
sure. To  be  so  is  to  surrender  to  minority  autocracy. 

The  rights  and  welfare  of  the  public  must  be  para- 


CONCLUSION  2S3 

mount.  No  special  interest  shall  dominate  American 
life.  Class-mindedness  and  class  rule  have  no  place 
in  American  government. 

Autocracy  of  capital  and  autocracy  of  labor  must 
be  held  sternly  in  check,  alike.  There  shall  be  no 
invisible  government — no  "new  society  within  the 
shell  of  the  old." 

Labor  must  be  given  a  square  deal  by  society. 
This  is  not  only  in  justice  to  labor,  but  it  is  a  matter 
of  self-preservation  for  the  general  public.  A  greater 
measure  of  employee  representation  and  personal 
contact  between  employer  and  employee  must  be 
had. 

We  are  still  testing  whether  a  government  such  as 
ours  can  long  endure.  In  order  to  endure  it  must  be 
based  on  the  self-evident  truths  of  the  Declaration 
of  Independence.  This  means  that  the  people  must 
always  be  supreme  and  that  no  minority  tyranny 
shall  be  set  up.  The  government  of  the  people  by 
the  people  for  the  people  shall  not  perish  from  the 
earth. 


THE  END 


Books  on  America's  Problems 

THE   NEGRO    FACES  AMERICA 

By  Herbert  J.  Seligmann 

In  this  book  Mr.  Seligmann  presents  his 
findings  on  America's  great  question  of 
the  Negro,  after  first-hand  investigation 
wherever  race  riots  have  occurred.  A  stimu- 
lating treatment  of  the  whole  problem — 
economic  phases,  etc. — is  given  in  a  way 
to  make  Americans  think.  Post  8vo.  Cloth, 

THE  STORY  OF  THE   NONPARTISAN 
LEAGUE  By  Charles  Edward   Russell 

The  facts  about  the  Nonpartisan  League,  its 
origin  in  North  Dakota,  as  Mr.  Russell  says, 
"when  one  man  woke  up,"  its  capture  of 
the  state  legislature  and  subsequent  control 
of  the  state  government  are  told  hi  this 
book  by  a  man  who  was  helpful  in  forming 
the  League.  Crown  8vo 

THE   UNITED  STATES:  AN    EXPERIMENT 

IN    DEMOCRACY  By  Carl  Becker 

What  democracy  means  to-day,  not  only  in 
America,  but  throughout  the  world — inter- 
preted to  Americans  in  terms  of  America's 
own  struggle  to  establish  and  maintain 
democratic  government.  Have  we  been  suc- 
cessful?— here  is  the  data;  the  answer  is  for 
each  reader  to  supply.  Crown  8vo.  Cloth 

RUSSIA  AS  AN   AMERICAN   PROBLEM 

By  John  Spargo 

John  Spargo  sees  Russia  not  merely  as  a 
vast  problem,  but  as  a  vast  opportunity, 
too.  He  is  not  a  Bolshevist;  but  for  the 
thinker  he  clears  away  the  haze  of  controversy 
about  Bolshevism  with  his  shrewd  analysis. 
For  the  business  man  he  gives  facts  that 
will  mean  money.  Illustrated 

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Books  of  World  Outlook 
Economic,  Social,  Political 

A  WORLD    REMAKING       By  Clarence  W.  Barron 

Among  other  things,  this  expert  on  finance 
diagnoses  the  seven  giant  forms  of  inflation 
which  are  the  peculiar  aftermath  of  the 
recent  war — inflation  by  war  bonds,  inflation 
of  lands,  buildings,  and  all  forms  of  property 
by  our  system  of  war-taxation,  etc. — and 
explodes  many  of  the  prevalent  theories  of 
financial  reconstruction.  Post  8vo 

OPEN    GATES   TO    RUSSIA   By  Malcolm  W.  Davis 

Not  a  war  book,  but  a  thoroughly  practical 
and  authoritative  book  about  the  opportuni- 
ties which  Russia  will  offer  in  her  coming 
period  of  reconstruction.  For  the  business 
man,  the  traveler,  and  the  social  worker. 

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WHAT   SOCIAL  CLASSES  OWE  TO   EACH 
OTHER  By  William  Graham  Sunnier 

In  this  day  of  class  distinction,  the  re-pub- 
lication of  Professor  Sumner's  statement  of 
the  case  for  the  existing  structure  of  society, 
with  an  introduction  by  Professor  Sumner's 
successor  at  Yale,  is  particularly  timely. 

Post  8vo 

"THE   GREATEST   FAILURE    IN   ALL 
HISTORY"  By  John  Spargo 

From  the  Soviet's  own  documents  and  the 
speeches  of  its  leaders,  Mr.  Spargo  shows 
how  Sovietism  in  its  original  form  has  failed 
to  cope  with  unavoidable  human  inequalities 
and,  under  economical  stress,  has  developed 
into  an  autocracy  worse  than  Czardom  which 
subverts  the  chief  aims  of  Bolshevism. 

Crown  8vo.     Cloth 

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